Happy Cruising Pty Ltd v Magistrates Court of Western Australia - [2025] WASCA 106

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HAPPY CRUISING PTY LTD -v- MAGISTRATES COURT OF WESTERN AUSTRALIA [2025] WASCA 106
CORAM:   MITCHELL JA
HALL JA
ARCHER JA

HEARD:   15 APRIL 2025
DELIVERED          :   17 JULY 2025
FILE NO/S:   CACV 32 of 2024
BETWEEN:   HAPPY CRUISING PTY LTD
Appellant
AND
MAGISTRATES COURT OF WESTERN AUSTRALIA
First Respondent
CITY OF GOSNELLS
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   LEMONIS J
File Number            :   CIV 2248 of 2023

Catchwords:

Judicial review - Appeal against decision of primary judge not to make a declaration that the appellant had been twice convicted and doubly punished for the same offence - Where appellant twice convicted of using land otherwise than in accordance with town planning scheme - Where first offence occurred in 2019 ‑ 2020 - Where second offence occurred in 2021 - Where appellant unsuccessfully appealed against second conviction without raising double jeopardy - Where appellant then brought judicial review proceedings seeking a declaration - Whether the conduct the subject of each charge was the same - Whether the application for a declaration was an attempt to controvert the conclusive nature of the second conviction - Whether properly open to exercise the discretion to make a declaration in the circumstances of this case

Legislation:

Criminal Code (WA), s 17
Planning and Development Act 2005 (WA), s 4, s 218(b)
Sentencing Act 1995 (WA), s 11

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A Tokley KC & T Houweling
First Respondent	:	No appearance
Second Respondent	:	M D Cuerden SC & D P Gillett

Solicitors:

Appellant	:	Cornerstone Legal
First Respondent	:	State Solicitor's Office
Second Respondent	:	McLeods Lawyers

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

Beekman v The State of Western Australia [2022] WASCA 130
Biggs v Director Public Prosecutions (1997) 17 WAR 534
Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134
Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322
Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112
Hunter v City of Joondalup [2015] WASC 444; (2015) 257 A Crim R 299
Luckman v The State of Western Australia [2024] WASCA 140
Munnich v Godstone Rural District Council [1966] 1 All ER 930; [1966] 1 WLR 427
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615
Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1
Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) LGERA 89
Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107
University of Western Australia v City of Subiaco (1980) 52 LGRA 360
WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66
X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630

JUDGMENT OF THE COURT:

The appellant is the owner of land in Orange Grove (the land). The land is zoned 'general rural'. In 2018, the appellant obtained planning approval for a retail nursery. However, a nursery was not established on the land. Rather, since at least September 2019, the appellant has used the land as a storage depot for trucks and heavy equipment. This unapproved use of the land drew the attention of the local government and resulted in prosecutions for offences under the Planning and Development Act 2005 (WA) (PD Act).
The appellant has been twice convicted of carrying out a development on the land otherwise than in accordance with the relevant town planning scheme, contrary to s 218(b) of the PD Act. The word 'development' in this context means the development or use of the land.[1] The first offence related to the use of the land between 6 September 2019 ‑ 2 April 2020. The second offence related to the use of the land between 15 June 2021 ‑ 14 October 2021.[2]
[1] PD Act, s 4 (definition of 'development').
[2] WAB 32.
The appellant unsuccessfully appealed against the second conviction to a single judge of the General Division and then the primary judge's decision to this court. The appellant then commenced new proceedings in the General Division, by way of an application for judicial review of the decision of the magistrate to convict the appellant on the second occasion. By those proceedings, the appellant sought a declaration that it had been twice convicted and doubly punished for the same offence. The issues of double jeopardy and double punishment were not raised in the previous appeals. The primary judge dismissed the application for a declaration. The appellant now appeals that decision.
At first blush, there would appear to be little merit in the claim that the appellant was twice convicted and doubly punished for the same offence in circumstances where each offence related to the use of the land during different non‑overlapping periods. The difference in the time periods provides an obvious explanation for why the issues of double jeopardy and double punishment were not raised in the Magistrates Court, on the single judge appeal, or in the subsequent appeal to this court. Furthermore, the application for a declaration appears to be an attempt to controvert the conclusive nature of the second conviction. Though much argument has been advanced as to why a declaration should have been granted by the primary judge, those first impressions are confirmed by closer analysis of the facts of the case.
The appeal has no merit and should be dismissed.

Relevant law - PD Act

Before turning to the factual circumstances, it is appropriate to set out the legal framework in which the prosecutions were brought.
Section 218(b) of the PD Act provides:
A person who -
…
(b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme, an improvement scheme or the Swan Valley Planning Scheme otherwise than in accordance with the provisions of the planning scheme; …
…
commits an offence.
Section 4 of the PD Act provides:
Development means the development or use of any land, including -
(a)any demolition, erection, construction, alteration of or addition to any building or structure on the land;
(b)the carrying out on the land of any excavation or other works;
(c)in the case of a place to which a protection order made under the Heritage Act 2018 Part 4 Division 1 applies, any act or thing that -
(i)is likely to change the character of that place or the external appearance of any building; or
(ii)would constitute an irreversible alteration of the fabric of any building;
The word 'use' is not defined in the PD Act. However, the meaning of that word, used in a similar context in the Town Planning and Development Act 1928 (WA), has been considered in University of Western Australia v City of Subiaco.[3] In that case, 'development' was relevantly defined as 'the use or development of any land and includes the erection, construction, alteration or carrying out, as the case may be, of any building, excavation or other works on any land'.[4] Burt CJ said that this definition:[5]
makes use of and it encompasses two ideas. The first is the 'use' of the land which 'comprises activities which are done in … or on the land but do not interfere with the actual physical characteristics of the land' and the second being 'activities which result in some physical alteration to the land which has some degree of permanence to the land itself': see Parkes v Environment Secretary per Lord Denning M.R. (citations omitted)
[3] University of Western Australia v City of Subiaco (1980) 52 LGRA 360.
[4] University of Western Australia, (363).
[5] University of Western Australia, (363 - 364).
In the present case, the definition of 'development' in s 4 of the PD Act also encompasses two concepts, development and use. The use of both terms was plainly intended to encompass something other than development by way of changes or improvements to the land. The ordinary meaning of 'use', when used as a noun as here, is the '[a]ct of using, the fact of being used', '[t]he action of using something; the fact or state of being used; application or conversion to some purpose'.[6] Accordingly, the word 'use' in s 4 of the PD Act includes activities done in, or on, the land.[7]
[6] Shorter Oxford English Dictionary (5^th ed, 2002) 3489.
[7] On the meaning of 'development', also see Bright Image Dental Pty Ltd v City of Gosnells [2018] WASCA 134 [108] ‑ [110]; and Shire of Murray v IVO Nominees Pty Ltd [2020] WASCA 45; (2020) LGERA 89 [41].
The primary judge came to the same conclusion. His Honour's finding in that regard is not challenged on the appeal.

First prosecution

By a prosecution notice signed on 9 June 2020,[8] the appellant was charged with three offences in relation to the land. One of the charges was later discontinued. For present purposes, the relevant charge is AR 6266 of 2020, which is in the following terms:[9]
Happy Cruising Pty Ltd (ACN 625 044 742)
Between 6 September 2019 and 2 April 2020, both dates inclusive
At 219 Kelvin Road, Orange Grove
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 provision of the said Scheme, contrary to Section 218(b) of the Planning and Development Act 2005.
[8] GAB 98.
[9] GAB 99.
The other charge was AR 6266 of 2020, which alleged that the appellant had carried out works on the land.
The appellant entered a written plea of guilty and the matter was adjourned for sentencing to 16 June 2021.[10] At the sentencing hearing in the Magistrates Court, the appellant was represented by a lawyer. The facts as read to the court by the prosecutor can be summarised as follows.
[10] GAB 108.
The appellant is the owner of the land located at 219 Kelvin Road, Orange Grove.[11] The land has an area of approximately 1.8 ha and is zoned 'general rural' under the City of Gosnells Town Planning Scheme No. 6. Under the scheme, the objective of the 'general rural' zoning is to provide for a range of rural pursuits which are compatible with the capability of the land and retain the rural character and amenity of the locality. 'Rural pursuit' is defined in the scheme to include such things as the agistment of animals, the growing of trees and plants for domestic or commercial use and the sale of produce grown on the land.[12]
[11] GAB 109.
[12] GAB 110.
Shortly after purchasing the land in October 2018, the appellant was granted planning approval for a retail nursery on the land.[13] A 'retail nursery' is defined by the City's Town Planning Scheme to mean premises used for the sale of horticultural goods such as seeds, seedlings, bulbs, shrubs, trees or other nursery stock. The definition may also include, as an incidental use, the sale of food and drinks, garden ornaments, herbicides, insecticides, gardening implements, plant containers, bagged fertilisers, bagged manure, bagged sand and bagged mulch. The approval also permitted the construction of a 35 m by 16 m shed, the construction of bitumen parking bays at the front of the land and in front of the shed, and a large nursery display area on the front half of the land. The approved development was on the northern half of the land.[14]
[13] GAB 110.
[14] GAB 111.
As a result of a complaint, an officer of the City of Gosnells (the City) inspected the land on 6 September 2019.[15] The inspection revealed that a shed had been constructed, as had a bitumen driveway and parking areas at the front of the land and in front of the shed. However, rather than being used as a retail nursery, the land was being used as a depot for vehicles, machinery and equipment.[16] At the time of the inspection, the vehicles on the land included: three prime movers; a semi‑trailer; three tip trucks; a three‑axle truck with a pig trailer; and, a number of smaller utility vehicles and trailers.[17] The machinery included a road roller compactor, an excavator and a bobcat. The equipment on the land included: sheet piling; pile boring augers; steel reinforcing for bored piles; and, a transportable steel fuel tank. To facilitate the use of the land for the storage of the vehicles and equipment, an area of additional hardstand, covering approximately 600 sqm, had been constructed on the southern side of the land.[18] A number of photographs were provided to the Magistrates Court depicting the equipment and the use of the land.
[15] GAB 111.
[16] GAB 111.
[17] GAB 111 - 112.
[18] GAB 112.
No approval had been granted by the City to construct any additional hardstand area, or to use the land as a depot or laydown area for vehicles, machinery or equipment. The use of land for storage or as a transport depot is prohibited on land zoned 'general rural'.[19] A drainage design had been submitted for the hardstand that had been approved in the 2018 development approval. However, no drainage design had been submitted for the additional hardstand. The City was unable to determine whether there was suitable or adequate drainage for the additional hardstand.[20]
[19] GAB 115.
[20] GAB 115.
The City wrote to the appellant on 10 September 2019 advising that no approval had been issued to store vehicles, machinery or equipment on the land, and that the appellant was required to apply for approval for the additional hardstand.[21]
[21] GAB 115.
On 23 September 2019, the City received a letter from the appellant's sole director requesting additional time to prepare an application for development approval for the additional hardstand area. The City granted an extension to 22 October 2019.[22] An application for development approval was eventually submitted on 18 November 2019. That application was refused.[23]
[22] GAB 115 - 116.
[23] GAB 116.
A subsequent inspection of the land by City officers occurred on 31 December 2019. That inspection revealed that the land continued to be used as a laydown area for the storage of vehicles, machinery and equipment, with more vehicles and equipment being stored on the land.[24] More sheet piling had been brought onto the land and there were now four excavators and two large front‑end loaders on the land, in addition to other trucks and vehicles.[25] There were also three sea containers stored on the land. Further photographs illustrating this use of the land were provided to the magistrate.
[24] GAB 116.
[25] GAB 116.
Further inspections of the land were carried out on 18 February and 21 February 2020.[26] Those inspections revealed that the land continued to be used for the storage of vehicles, plant and equipment. Numerous trucks remained on the land, as well as the sea containers, excavators, a large front‑end loader, and smaller rollers and compactors. The shed included a hoist and shelves containing spare parts, and was being used as a workshop to service vehicles.[27]
[26] GAB 117.
[27] GAB 117.
The inspection on 21 February 2020 also revealed that additional hardstand, covering an area of approximately 850 sqm, had been constructed at the rear of the land.[28] That area was also being used as a laydown area for trucks and equipment. Once again, no approval had been granted by the City for the construction of that additional hardstand area. The sole director of the appellant company was present during the inspection on 21 February 2020 and was advised the land could not be used for the storage of vehicles, machinery and equipment, and that these items would have to be removed.[29]
[28] GAB 118.
[29] GAB 118.
On 11 March 2020, the City wrote to the appellant advising that the land must be brought into compliance with the City's planning scheme within 14 days and that all unauthorised vehicles, machinery and equipment must be removed.[30] In April 2020, subsequent inspection of the land by officers of the City revealed that the land continued to be used to store vehicles, sea containers, machinery and equipment.[31] At no time during the charge period was the land being used as a retail nursery.
[30] GAB 118.
[31] GAB 118.
The sole director of the appellant is a director of numerous other companies, 11 of which have the land listed as their principal place of business.[32] The director subsequently advised the City that most of the equipment and material being stored at the land belonged to one of those other companies, with some of the materials being owned by another company which provided services in the soil stabilisation industry. A third company was in the business of providing shoring and piling services.[33]
[32] GAB 119.
[33] GAB 120.
An application for planning approval for the existing use was made on 21 April 2021.[34] On 8 June 2021, the appellant's planning consultant was advised that the City considered that the proposed use could not be approved.
[34] GAB 125.
The maximum penalty for each of the offences was a fine of $1 million for a corporate offender.[35] The PD Act also provides for a daily penalty of $125,000 per day for a corporate offender. The prosecutor told the magistrate that the daily penalty did not apply to the charge of carrying out works on the land because it could not be alleged that works had continued for every day throughout the period. However, in respect of the charge of using the land without having obtained development approval, the prosecutor submitted that the daily penalty could apply.[36]
[35] Sentencing Act 1995 (WA), s 40(5); and PD Act, s 223.
[36] GAB 125 - 126.
In sentencing remarks, the magistrate referred to the continued use of the land for the storage of trucks, plant and equipment over the charge period.[37] His Honour also noted that he had to 'take into account the continuing non‑compliant use of the land'.[38] His Honour referred to that use continuing beyond the charge period, as being indicative that there had been no remediation of the situation.[39] His Honour also referred to continuous non‑compliance in the context of the need for deterrence. His Honour concluded that the appropriate penalty in respect of the carrying out of works on the land (charge AR 6265 of 2020) was a fine of $75,000.[40] The penalty for the use of the land (charge AR 6266 of 2020) was $100,000. His Honour did not impose an additional daily penalty in respect of the use of the land charge.[41]
[37] GAB 175 - 176.
[38] GAB 177.
[39] GAB 177.
[40] GAB 182.
[41] GAB 182 - 183.

Second prosecution

By a prosecution notice signed on 23 November 2021, the appellant was charged with a further offence contrary to s 218(b) of the PD Act. The relevant charge is AR 13176 of 2021, which was in the following terms:
Happy Cruising Pty Ltd (ACN 625 044 742)
Between 15 June 2021 and 14 October 2021, both dates inclusive
At 219 Kelvin Road, Orange Grove
Used land within the City of Gosnells Town Planning Scheme No. 6 Scheme Area without having obtained the developmental 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 was convicted in its absence pursuant to s 55 of the Criminal Procedure Act 2004 (WA).
The matter was set down for sentencing in the Magistrates Court on 19 April 2022. The appellant was represented at that sentencing hearing by a lawyer.
At the sentencing hearing, the prosecutor stated the material facts.[42] Those facts were similar to those alleged in respect of the earlier offending, other than in the following material respects. After setting out the history of the use of the land, including the previous convictions, the prosecutor turned to events which had occurred since the first offence.
[42] GAB 188.

The prosecutor said that, despite pleading guilty to using the land without development approval on 10 May 2021, the company had continued to use the land as a depot and a laydown area without approval.[43] Further inspection of the land by officers of the City in June, July and September of 2021 revealed that vehicles, including trailers, trucks and machinery, continued to be stored on the land. The shed continued to be used as a garage to service vehicles and machinery and there were also large stockpiles of sand and gravel being stored at the rear of the site.
[43] GAB 190 - 191.
The City wrote to the company and its director on 8 September 2021, advising the company to immediately cease the unlawful use of the land and remove all items being stored there.[44] That letter stated that a further inspection would be carried out after 15 September 2021 and that, if the land continued to be used unlawfully, the City would commence further legal action.
[44] GAB 191.
On 13 September 2021, the City received a letter from the director complaining about the City's compliance officer and advising that entry to the land would be denied to the City officer in the future if the officer did not: give 24 hours' notice, have proof of a COVID‑19 vaccination, and have a negative result to a COVID‑19 test 24 hours prior to the inspection.[45] The director had also said on another occasion that he would liquidate the company before paying any fines.
[45] GAB 191.
Inspection of the land by an officer of the City on 14 October 2021 revealed no change in the state of the land.[46] Photographs of inspections conducted in June, July, September and October of 2021 were provided to the Magistrates Court.
[46] GAB 191.
As a result of the non‑compliance, the City commenced further proceedings. The prosecutor referred to the illegal use of the land being continuous throughout the charge period and in the face of a prior conviction.
In his brief sentencing remarks, the magistrate noted that the appellant had brought proceedings in the State Administrative Tribunal, seeking a review of the City's decision not to grant approval for the current use.[47] His Honour considered that that was not a matter to which he could give any weight. His Honour said that 'after the last conviction the onus was on [the appellant] to remove the materials until such time as approval is subsequently granted, if it is granted. Not to sit there and just leave everything there and carry on'.[48]
[47] GAB 198.
[48] GAB 198.
The magistrate considered that the appellant was motivated by commercial considerations and a desire for personal advantage.[49] His Honour referred to the previous proceedings and the fines imposed and said that the penalty for the present offence had to reflect the appellant's ongoing defiance. He said that any fine had to incorporate both general and personal deterrence. His Honour imposed a fine of $250,000 and a daily penalty of $100 a day for 122 days, being an additional $12,200.[50]
[49] GAB 198.
[50] GAB 198.
A subsequent appeal against the second conviction was dismissed by a single judge of the General Division,[51] and on further appeal to this court.[52] Those appeals turned on the issue of whether the appellant was properly convicted in its absence pursuant to s 55 of the Criminal Procedure Act.
[51] See Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322.
[52] See Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112.
There was no suggestion - either in the Magistrates Court, or in the subsequent appeals to a single judge and this court - that either the second conviction should be set aside on double jeopardy principles or that no additional penalty should be imposed having regard to s 11 of the Sentencing Act. It was implicit in those proceedings that the appellant accepted that the second prosecution related to a distinct and separate offence.

Application for a declaration

On 3 November 2023, the appellant filed an application for judicial review of the decision made in the Magistrates Court on 16 June 2021 convicting the appellant of the second offence.[53] The appellant initially sought a writ of certiorari and a writ of mandamus, as well as a declaration. The applications for prerogative writs were subsequently abandoned, no doubt because such writs cannot be issued in respect of or directed to the Magistrates Court.[54] However, the application for a declaration was maintained.
[53] BAB 33.
[54] See Magistrates Court Act2004 (WA), s 35.
The first ground of the application was that the appellant had been twice convicted and doubly punished for an offence created by s 218(b) of the PD Act in circumstances where the charge and facts were materially the same, contrary to the rule against double jeopardy and/or s 17(1) of the Criminal Code (WA) (Code).[55] The second ground was that the magistrate lacked jurisdiction to convict and sentence the appellant in respect of the second charge because it relied on the same offending as the earlier conviction. The third ground was that the magistrate did not have jurisdiction because there had been a failure to serve the statement of material facts on the appellant.
[55] BAB 34.

Primary judge's reasons

After setting out the relevant background and the law in relation to double jeopardy and double punishment, the primary judge said that it was important to commence with a precise analysis of the two offences with which the appellant had been charged.[56] His Honour noted that the appellant's submissions focused on the characterisation of the conduct not on what the conduct was. His Honour then said:[57]
A core component of [the appellant's] submissions is that it used the land in the same manner over the respective periods the subject of each offence. That appears to be correct. However, it does not have the result that [the appellant] contends for, namely it does not result in the elements of each of the first and second offence being the same.
As I have said, the enquiry is directed to the acts the subject of each offence which renders [the appellant] liable to punishment (the element of conduct). In respect of each offence, the element of conduct is constituted by the activities that [the appellant] engaged in during the period specified in the relevant prosecution notice. The second defendant needed to prove beyond reasonable doubt that the activities [the appellant] engaged in during that period breached the applicable scheme in place at that time. Understood in this way, the elements the subject of the first offence can never constitute the elements the subject of the second offence. Each offence relates to different conduct, namely what happened during different periods of time. The elements do not transform into each other because the conduct taken as a whole has the same characterisation.
[The appellant] also pointed to the second defendant's sentencing submissions in respect of the second offence that [the appellant's] conduct continued unabated. That submission however does not convey that the element of conduct is the same. Rather, it conveys that [the appellant] continued to engage in conduct of the same character. (original emphasis)
[56] Primary reasons [85].
[57] Primary reasons [94] ‑ [96].
In regard to a submission made by the appellant that the dates of an offence are not an element that must be proven beyond reasonable doubt, and that therefore the different periods prescribed for each offence did not result in the offences having different elements, his Honour said:[58]
Whether a date or date range must be proved beyond reasonable doubt does not advance [the appellant's] argument. Ordinarily, the purpose of the specification of a date or date range is to assist in identifying the alleged conduct the subject of the charge with sufficient specificity to enable the accused to meet the charge. So, in this case, the date range in each of the prosecution notices assisted in identifying the conduct the subject of each charge that needed to be proved beyond reasonable doubt. The provision of a date range reinforces that the enquiry is directed to the conduct that took place. Further, as I explain at [105] below, the date range limits the days in respect of which a daily penalty can be imposed. (original emphasis)
[58] Primary reasons [101].
A submission was made on behalf of the appellant that it would have been possible on sentencing for the first offence for a daily penalty to have been imposed that covered the offending the subject of the second offence. In regard to that submission, the primary judge said:[59]
I do not accept this submission. The penalty provision in s 223 is directed to offending conduct that has occurred. Further, as a general proposition, a penalty imposed for a criminal offence is in respect of conduct that has happened, not possible future conduct that might happen at some unspecified time in the future. [The appellant's] suggested approach also belies the prescribed nature of sentencing. Section 6 of the Sentencing Act requires that the sentence must be commensurate with the seriousness of the offence. Seriousness is assessed by reference to factors that include the circumstances of the commission of the offence and any available mitigating factors. Such matters cannot be known in respect of possible future conduct. [The appellant] did not refer me to any authorities to the effect that a criminal penalty could be imposed for future conduct if it eventuated.
[59] Primary reasons [104].
As to a submission made on behalf of the appellant to the effect that non‑compliance represented a single offence that could not be the subject of further charges (in reliance on Hunter v City of Joondalup[60]), the primary judge said that:[61]
In this case, the charged conduct for each offence was constituted by [the appellant] engaging in positive acts, namely using the land in a particular manner. Applying the meaning attributed to the word 'use' by Burt CJ in The University of Western Australia, [the appellant] used the land by engaging in activities which were done in or on the land. [The appellant] was not charged with failing to comply with a direction to cease using the land in the way [in] which it was. The charged conduct was not of a passive character. Rather, the charged conduct plainly fell within the first sense described in the passage at [114] above and therefore 'constitutes a separate and distinct offence each day the conduct continues'.
Accordingly, the analysis undertaken in Hunter and R v Industrial Appeals Court does not assist [the appellant's] argument.
[60] Hunter v City of Joondalup [2015] WASC 444; (2015) 257 A Crim R 299.
[61] Primary reasons [117] ‑ [118].
In conclusion, the primary judge said:[62]
In summary, the relevant enquiry is directed to the elements of conduct the subject of each of the two offences. It is not directed to the characterisation of the conduct, divorced from the facts. Each of the first and second offences were made up of different elements of conduct. The element of conduct the subject of the first offence was the activities engaged in or on the land within the period 6 September 2019 to 2 April 2020. The element of conduct the subject of the second offence was the activities engaged in or on the land within the period 15 June 2021 to 14 October 2021. Irrespective of whether those activities have the same character, they cannot comprise the same acts, as they have occurred on different days.
That being so, s 17 was not available to [the appellant].
In relation to the first limb, it was not open for [the appellant] to have been convicted of the second offence on the first prosecution notice. The first prosecution notice was directed to a different period and thus different activities to the conduct the subject of the second offence. Further, by the point in time that [the appellant] pleaded guilty on the first prosecution notice (10 May 2021), the conduct the subject of the second offence had not commenced.
In relation to the second limb, it was not open for [the appellant] to be convicted of the first offence on the prosecution notice for the second offence. The second prosecution notice was directed to a later period and thus different activities to the conduct the subject of the first offence.
For the same reasons, s 11 of the Sentencing Act is not engaged, nor are any common law principles of double punishment. Further, the sentence for the first offence could not include a penalty for future ongoing conduct.
There is also no arguable basis upon which the prosecution of the second offence ought to have been stayed by reason of [the appellant's] conviction for the first offence. To the contrary, the first offence was a matter of some importance to the sentencing disposition on the second offence.
Accordingly, the numerous grounds relied on by [the appellant] do not succeed.
[62] Primary reasons [119] ‑ [125].

Grounds of appeal

The grounds of appeal are as follows:[63]
[63] WAB 5 - 6.
1.The primary judge erred in law in his findings as to what constitutes the 'elements' of an offence for the purposes of the common law principle of 'double jeopardy' and s 17 of the Criminal Code (WA) {J[50], [95], [99], [119]}.
2.The primary judge erred in law in considering or holding that the relevant conduct constituted a separate and distinct offence each day that the conduct occurred {J[117]}.
3.The primary judge erred in fact or in law in considering that the facts referred to by the prosecutor before the Magistrate in respect of the second offending were 'only relied on as an aggravating feature in respect of penalty' and not for the purposes of showing that the offending was 'continuing' {J[26], [28]}.
4.The primary judge erred in law in considering that the common law pleas of autrefois convict and autrefois acquit are excluded by the operation of s 17 of the Criminal Code {J[55]}, and in concluding that s 17 of the Criminal Code was not available to the Appellant{J[120]}.
5.The primary judge erred in law in finding that s 11 of the Sentencing Act 1995 (WA) would not be engaged, nor the common law principles concerning double punishment {J[123]}.
6.The primary judge erred in fact in considering that the Appellant was seeking to amend its application to seek a declaration, when a declaration had always been sought by the Appellant. {J[10], [12]}.
7.Alternatively, the primary judge erred in fact and in law in concluding that, the applicant should not be permitted to amend its application and that the proceedings should be dismissed {J[127]}.
8. Further, the primary judge erred in law by holding that the grounds raised in the proceedings circumvented the appeal process provided for by the Criminal Appeals Act 2004 (WA) {J[126]}.

Appellant's submissions

The appellant submits that it was: twice convicted of the same offence contrary to the common law principles of double jeopardy and s 17 of the Code; and, twice punished for the same offence contrary to s 11 of the Sentencing Act.
The appellant argues that offending under s 218(b) of the PD Act can consist of actions that are of a continuing nature. The appellant says that that was the case here and that the conduct that was the subject of the first prosecution was essentially the same as the conduct that was the subject of the second prosecution.[64] As there was one singular course of conduct, that conduct could not constitute two offences.
[64] WAB 11.
The appellant's principal contention is that the common law principle against double jeopardy and s 17 of the Code are based on a test that is directed to whether the elements of both offences are the same.[65] The application of the test may, of necessity, involve reference to the facts constituting the elements of the offence, but the evidence does not determine the elements of the offence, and it does not follow that if different facts are relied upon, the elements are not the same. That is said to be clear from cases such as Pearce v The Queen,[66] and WGC v The Queen.[67]
[65] WAB 12.
[66] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.
[67] WGC v The Queen [2007] HCA 58; (2007) 233 CLR 66.
As to ground 1, the appellant submits that the dates when conduct occurs are not an element of an offence, only particulars.[68] The date of an offence is not essential in determining whether double jeopardy principles are enlivened. The elements of s 218(b) require proof that a person commences, continues or carries on acts inconsistent with a planning scheme. The appellant contends that there is only one continuing offence until the prohibited conduct ceases.[69] Accordingly, the appellant was twice convicted of the same continuing offence.
[68] WAB 13 - 14.
[69] WAB 14 - 15.
As to ground 2, the appellant contends that, contrary to the view taken by the primary judge, there is no separate offence committed on each individual day that the offending conduct occurs.[70] The appellant was convicted and fined for the continuing unlawful use of the land on the first occasion. The appellant was again convicted for the continuing unlawful use of the land on the second occasion. In other words, one of the elements of the offence was that there was continuing use of the land.[71] Such an element can be satisfied by demonstrating that the land was used for more than a day or days. The actual dates are not determinative of whether continuing use occurred.[72] Thus, it is said not to be a separate element of the offence that the offending conduct occurred between, or on, particular dates.
[70] WAB 18.
[71] WAB 18 - 19.
[72] WAB 19.
As to ground 3, the appellant contends that the primary judge erred by concluding that the first offending conduct was relied on as an aggravating feature in respect of the penalty, rather than for showing that the offending had continued.[73] It is said that this conclusion is not consistent with the significantly similar facts, and a statement by the prosecutor that the offence had continued after the first prosecution.
[73] WAB 19.
As to ground 4, the appellant contends that the primary judge erred by holding that s 17 of the Code was exhaustive and excluded the common law pleas of autrefois convict and autrefois acquit.[74] The appellant submits that the common law principle against double jeopardy can co‑exist with the statutory provision and is not displaced by it.[75] The appellant relies on the decision of the High Court in R v Carroll,[76] in support of its argument.
[74] WAB 19 - 20.
[75] WAB 20.
[76] R v Carroll [2002] HCA 55; (2002) 213 CLR 635.
As to ground 5, the appellant submits that s 11 of the Sentencing Act in effect provides that the conduct relied upon to establish an offence cannot be relied upon again for the purpose of sentencing for a subsequent offence.[77] The appellant submits that it has been punished twice for the same offending behaviour based on essentially the same evidence.[78] As a result, s 11 of the Sentencing Act precluded the imposition of a further penalty. Alternatively, the common law principle against double punishment can apply to the facts of this case.
[77] WAB 22 - 23.
[78] WAB 23.
As to grounds 6 and 7, the appellant submits that the primary judge was wrong to view the appellant as seeking to amend the application in order to obtain a declaration.[79] The appellant says that it always sought a declaration. What happened was not that the appellant sought to amend its application to include a declaration, but was not pressing its claim for a prerogative writ.[80] The Supreme Court has the power to make a declaration of right. The appellant submits that a declaration would appear to be available in circumstances such as the present, notwithstanding that the matters were decided adversely to the appellant in the criminal proceedings.[81] The appellant refers to Sankey v Whitlam;[82] X v Australian Prudential Regulation Authority;[83] and, Biggs v Director Public Prosecutions.[84]
[79] WAB 24.
[80] WAB 24.
[81] WAB 24.
[82] Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1.
[83] X v Australian Prudential Regulation Authority [2007] HCA 4; (2007) 226 CLR 630, 637.
[84] Biggs v Director Public Prosecutions (1997) 17 WAR 534.

As to ground 8, the appellant submits that the primary judge erred by holding that the proceedings circumvented the appeal process provided for by the Criminal Appeals Act 2004 (WA).[85] The appellant says that that is not so because a declaration declares the legal rights of a party prospectively. The proposed declaration is not directed to, and would not have the effect of, declaring invalid any orders made by the magistrate. It is not the same as the appeal process, whereby error by an inferior tribunal is corrected by a higher court and orders are set aside. The declaration does not replace the appellate process. It is also contended that the declaration sought by the appellant does not contradict the facts upon which the Magistrates Court proceeded.
[85] WAB 25.
The appellant further submits that there is English authority, which has been approved in Australia, that supports the proposition that, even if an appeal is not taken against a decision, that does not preclude a person from seeking a declaration as to the law. The appellant refers in this regard to Munnich v Godstone Rural District Council,[86] in which three convictions were recorded against an accused for a failure to comply with the relevant planning provisions, and those convictions had not been appealed. The Court of Appeal of England and Wales held that, in the circumstances then under consideration, there was no impediment to the obtaining of a declaration if the applicant was correct in its substantive arguments.
[86] Munnich v Godstone Rural District Council [1966] 1 All ER 930; [1966] 1 WLR 427.

Second respondent's submissions

The second respondent submits that the appellant was convicted of different offences with respect to conduct engaged in over two different non‑overlapping periods of time. No issue of double jeopardy or double punishment even arguably arises. The conduct which constituted the appellant's offending, the subject of each of the two convictions, is not the same conduct. The fact that the two distinct periods of offending occurred on the same land, that each was an offence against the same statutory provision and that, broadly speaking, the character of the conduct or activities was the same, does not alter the inescapable fact that the conduct which constituted the first offence was not the same as the conduct which constituted the second offence in any relevant sense.[87] The second respondent submits that this is so elementary and self‑evident that it would hardly need to be stated were it not for the fact that the appellant seriously suggests to the contrary.
[87] WAB 33 - 34.
Insofar as the appellant has relied upon what was said by the High Court in Pearce regarding the elements of an offence, the second respondent submits that the appellant has misread Pearce.[88] The circumstances of Pearce were that the accused was charged with two offences arising out of a single episode. The elements of the two offences overlapped, but were not identical. The whole of the discussion in Pearce proceeded from the starting point that the two charges arose out of the same or substantially the same set of facts.[89] It was only in this context that a discussion arose regarding whether the elements of the two offences were the same. The issue in Pearce was whether there had been double punishment to the extent that the accused, having been found guilty of both charges, had been sentenced twice for the same conduct and if so, how that was to be addressed.[90] Accordingly, the second respondent submits that nothing in Pearce supports the appellant's argument that the appellant could not be prosecuted for two separate incidents of offending consisting of conduct over two different non‑overlapping periods of time.[91]
[88] WAB 38 - 39.
[89] WAB 39.
[90] See also Beekman v The State of Western Australia [2022] WASCA 130 [43].
[91] WAB 40.
As to the argument based on the dates not being an element of the offence, the second respondent says that this does not alter the conclusion that different conduct, occurring over different non‑overlapping periods of time, is not the same conduct in any relevant sense for the purpose of the principles of double jeopardy.[92] The question, for present purposes, is not whether the prosecution was required to prove the precise dates of the respective periods of offending that were the subject of each conviction; but rather, whether the period of offending that was the subject of each of the two convictions was the same.[93]
[92] WAB 41.
[93] WAB 41 - 42.
The second respondent also raises, by way of a notice of contention, that the primary decision should be upheld on the ground that the declaratory relief sought, even if otherwise available, should have been refused in the exercise of the court's discretion. The second respondent submits that declaratory relief of the type sought should only be granted with extreme caution and in exceptional circumstances.[94] The facts of the present case bear no resemblance to the highly unusual circumstances of Biggs. In Biggs, a significant consideration was that the accused had no right of appeal, and as a consequence, no effective remedy other than to apply for declaratory relief. That is not the case here. The appellant had a statutory right of appeal and exercised that right. If the ground upon which the appellant now relies had merit, it should have been raised in an appeal. The primary judge was correct to identify powerful public policy considerations which weighed against a grant of declaratory relief.[95] Furthermore, such relief would have conflicted with the record of the second conviction (upheld by this court on appeal).
[94] WAB 48.
[95] WAB 48 - 49.
The second respondent notes that the appellant submitted that a declaration would oblige the second respondent to refund monies paid to it on the basis of the second conviction. If the second respondent failed to do so, that failure would support an approach to the Attorney General for the appellant to be compensated by the State. This would appear to be inconsistent with the acceptance of the appellant in its written submissions that the declaration would not have the effect of declaring invalid any orders made by the learned magistrate.[96] The second respondent notes that, if it had merit, the suggested issues of double punishment and reliance on s 11 of the Sentencing Act could and should have been raised by way of an appeal against sentence.[97]
[96] WAB 25.
[97] WAB 50.

The principle of incontrovertibility

Prior to the hearing of the appeal, the court wrote to the parties asking that they address the following questions:
1.Would the declaration sought in par 4 of the appellant's orders wanted impugn the conviction entered by the Magistrates Court of Western Australia in AR/13176/2021 on 18 January 2022, which has not been set aside, and the decisions in Happy Cruising Pty Ltd v City of Gosnells [2022] WASC 322 and Happy Cruising Pty Ltd v City of Gosnells [2023] WASCA 112, which dismissed appeals from that conviction, contrary to the principle of incontrovertibility referred to in Smargiassi Nominees Pty Ltd v Shire of Collie,[98] and the cases there cited?
2.Would the declaration sought in par 4 of the appellant's orders wanted to impugn the sentence imposed in AR/13176/2021, which has not been set aside?
3.Do the decisions referred to in question 1 constitute a final determination binding as between the appellant and the second respondent, that the appellant committed the offence charged in AR/13176/2021 and that the fine of $262,200 was the appropriate sentence for that offence?
4.If the answer to question 1 and/or question 2 and/or question 3 is 'yes', is it open to the appellant to seek that declaration and open to the court to make that declaration?
[98] Smargiassi Nominees Pty Ltd v Shire of Collie [2021] WASCA 107 [52].
The parties were given leave to file further submissions in respect of those questions.
In further written submissions, the appellant submitted that there is a distinction between: on the one hand, a declaration that seeks to impugn a conviction by seeking, for example, to relitigate the facts upon which a conviction was based or to have it set aside or otherwise invalidate a conviction; and, on the other hand, a declaration which does not challenge the factual basis for a conviction or seek to have it set aside or otherwise invalidated, but instead, seeks a declaration as to a person's legal rights. The appellant submits that this is a proper basis for distinguishing Smargiassi and explains the basis for the decisions in Munnich and Biggs.[99]
[99] Appellant's further submissions dated 29 April 2025, 2 - 3.
The appellant submits that a person is not precluded from obtaining a declaration, provided the declaration sought does not relitigate or reverse the facts upon which the conviction is based or set aside or otherwise seek to have declared invalid a conviction.[100] The appellant seeks to amend the form of the declaration in order to avoid any suggestion that the second conviction would be impugned. The form of the declaration that the appellant now seeks is:[101]
The appellant was twice convicted and twice punished for the same offence, being an offence against s 218(b) of the Planning and Development Act 2005 (WA) on 21 June 2021 and again [on] 18 January 2022. In respect of its punishment, it was twice fined for the same offence on 21 June 2021 and again [on] 18 January 2022.
[100] Appellant's further submissions dated 29 April 2025, 3.
[101] Appellant's further submissions dated 29 April 2025, 5.

Disposition

The expression 'double jeopardy' is often used to encompass the wide principle that no one should be punished again for the same matter.[102] Contained within this wide principle is the defence under s 17 of the Code. That section provides, in effect, that it is a defence to a charge to show that the accused person has already been tried, convicted or acquitted of the same charge on an earlier occasion; or, that on either occasion a conviction for the same offence was available. The defence is analogous to the common law pleas of autrefois acquit and autrefois convict. It has been said of those pleas that they relate to charges based on the same, or substantially the same facts.[103]
[102] Pearce [9] (McHugh, Hayne & Callinan JJ).
[103] Carroll [130].
Another aspect of the double jeopardy principle is the rule against double punishment. The common law principle against double punishment and the statutory limitation in s 11 of the Sentencing Act were both considered by this court in Luckman v The State of Western Australia.[104] As the court in that case noted, the purpose of both the common law principle and s 11 'is to ensure that when a person is sentenced for offences which factually overlap, the offender is not doubly punished for the common conduct'.[105] Section 11 of the Sentencing Act is engaged if, and only if, the evidence necessary to establish the commission of one offence establishes, without more, all of the elements of another offence. The common law principle against double punishment is not so confined, and may operate whenever there is factual overlap between two charged offences.
[104] Luckman v The State of Western Australia [2024] WASCA 140.
[105] Luckman [50] (Quinlan CJ, Mazza & Hall JJA).
At the hearing of the appeal, senior counsel for the appellant accepted that the appeal critically depended upon acceptance of the contention that the conduct the subject of the first and second convictions was the same.[106] It was submitted that in making that assessment the date ranges of the charges were immaterial. Senior counsel accepted that if that contention did not succeed, the appeal must fail. That contention cannot succeed.
[106] Appeal ts 14.
The conduct the subject of the first offence was very clearly not the same as the conduct the subject of the second offence. The first offence related to the appellant's use of the land between 6 September 2019 and 2 April 2020. The second offence related to the appellant's use of the land between 15 June 2021 and 14 October 2021. To state the obvious, the second offence related to a different, non‑overlapping period. The fact that the unlawful use of the land on each occasion was of the same general nature does not mean that it was the same conduct. The dates were not immaterial, rather, they identified the relevant conduct that constituted the offence.
Furthermore, as the facts of each offence plainly demonstrate, the conduct on each occasion was materially different, not only because it occurred at a different time, but because the use of the land related to different vehicles, equipment and items that were stored on the land. Each offence arose from inspections conducted by City officers on different days. The photographs taken at those inspections were tendered to confirm the relevant use at the relevant times.
The appellant's submissions deprive the word 'use' of its ordinary meaning. The use of land between 6 September 2019 and 2 April 2020 is not in any meaningful sense the same conduct as the use of that land between 15 June 2021 and 14 October 2021. The unlawful use may be of the same character, but the conduct is different. To argue to the contrary produces absurd results. It would mean that an owner of land who is using that land for an unlawful purpose can only be prosecuted once, and having been so prosecuted can continue that unlawful use with impunity. This would defeat the evident purpose of s 218(b) to prevent, deter and punish the unlawful use of land.
The appellant's reliance, on cases where it has been held that there is a single continuing offence that can only be prosecuted once, is misplaced. Those cases arise where the offence is a failure to comply with a statutory notice or direction within a specified period of time.[107] Plainly, in such cases there is only one failure, though it may be a continuing one. The present case is not of that nature. It does not involve a failure to comply with a notice, but the unlawful use of land. The fact that s 218(b) refers to it being an offence to 'continue' any development, means only that the offence may be committed by continuing with an existing development. It does not mean that the offence itself is a continuing offence such that a failure to comply with s 218(b) can only be prosecuted once.
[107] Hunter v City of Joondalup; R v Industrial Appeals Court; Ex parte Barelli's Bakeries Pty Ltd [1965] VR 615, 620.
The appellant seeks to draw support from the fact that an additional daily penalty can be imposed for an offence of this nature. This is said to acknowledge that the offence is a continuing one. The fact that it was open to the magistrate to impose a daily penalty for the first offence does not assist the appellant. Firstly, any such penalty could only relate to past conduct as at the date of sentencing, or in other words, a penalty could not be prospectively imposed for future conduct. Secondly, the imposition of a daily penalty is not mandatory, and no daily penalty was imposed for the first offence in any event.
References in Pearce to the elements of offences being the critical touchstone of comparison for the purposes of double jeopardy need to be understood in their context. In Pearce, the appellant was convicted of maliciously inflicting grievous bodily harm with intent to do so, and also of breaking and entering the dwelling house of the same victim and inflicting grievous bodily harm on him. He appealed on the grounds of double jeopardy and double punishment. In respect of the ground of double jeopardy, the High Court held that no plea in bar was available as each of the offences required proof of a fact which the other did not. In respect of the ground of double punishment, the High Court held that the sentencing process miscarried because the accused was doubly punished for the common element of inflicting grievous bodily harm. The fact that the High Court approached the resolution of the case by comparing the elements of the two offences must be understood in the context that both offences arose from the same factual circumstances. Pearce does not support the appellant's contention that the dates of the respective offences are irrelevant when considering double jeopardy or double punishment.
Nor is there any proper basis for a complaint of double punishment more generally in the circumstances of this case. The conduct addressed by each prosecution was distinct. The evidence necessary to establish the commission of the first offence did not establish the commission of the second offence. There was no factual overlap between the two offences. Accordingly, there was no conduct for which the appellant was twice punished. The magistrate who sentenced for the first offence did not impose any penalty for the conduct the subject of the second offence, which was yet to occur. Furthermore, the magistrate who sentenced for the second offence did not impose any penalty for the conduct the subject of the first offence. References in the sentencing remarks to the prior offending were made to place the second offence into context. The fact that an offender has a prior record of similar offending is not an aggravating factor,[108] however, it is relevant in assessing whether the offender has good character and whether specific deterrence should be given greater weight.
[108] Sentencing Act, s 7.
The appellant's primary contention - that the conduct the subject of the two offences was the same - is without merit and the appeal must fail. It is unnecessary to deal with each of the grounds. It is sufficient to state that the primary judge was correct, for the reasons that he gave, that the contentions of the appellant were unfounded and that the application for a declaration should be dismissed.
In any event, a declaration was inappropriate in the circumstances of this case because the appellant was seeking by that declaration to controvert the conviction. In Smargiassi, this court said:[109]
It is accepted that the principle of incontrovertibility applies in the case of a prior conviction. The principle precludes a person, in subsequent civil or criminal proceedings, from impugning his or her earlier conviction. Moreover, in this State there is some support for the proposition that, in the case of a judgment of conviction, the fact of the conviction and the material facts comprising the elements of the offence the subject of the conviction are matters that are incontrovertible between an accused and the State. (citations omitted)
[109] Smargiassi [52].
It could hardly be clearer that the appellant was seeking to impugn the second conviction by applying for a declaration that it had been twice convicted of the same offence. The essential contention of the appellant was that the second conviction is null and void because it infringed the principle of double jeopardy. That contention was not made in the context of an appeal against the conviction but in separate civil proceedings. The amended form of the declaration sought does not improve the appellant's position. It seeks to use the formulation of the principles of double jeopardy whilst avoiding the conclusion that inevitably flows from that formulation. A declaration in the terms sought would necessarily be inconsistent with the conviction.
In any event, the grounds for the exercise of the discretion to grant declaratory relief were not established and, if it was necessary to do so, the notice of contention should be upheld. The appellant had ample opportunity to raise the issue of double jeopardy: in the Magistrate's Court; in the appeal to the General Division; and, on the further appeal to this court. On each occasion, the appellant was legally represented. This is not a case like Biggs, where the appellant had no recourse other than to seek a declaration. Rather it is a case where the appellant, having exhausted its appeal rights, now seeks to use judicial review proceedings to raise a new point. In effect the appellant seeks to undermine the finality of the criminal proceedings by way of a collateral challenge to the second conviction. The public policy against the collateral review of criminal proceedings strongly weighs against the exercise of discretion to grant declaratory relief in a case such as this.

The appeal should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Research Associate to the Hon Justice Hall
15 JULY 2025