Hollywood v City of Joondalup - [2010] WASC 306

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HOLLYWOOD -v- CITY OF JOONDALUP [2010] WASC 306

CORAM: PRITCHARD J

HEARD: 20 AUGUST 2010

DELIVERED : 29 OCTOBER 2010

FILE NO/S: SJA 1020 of 2010

BETWEEN: JOHN HOLLYWOOD
Appellant
AND
CITY OF JOONDALUP
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE S P SHARRATT
File No  :JO 9714 of 2009

Catchwords:

Criminal law - Availability of the defence in s 22 of the Criminal Code (WA) in relation to an offence under s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) - Defence of honest claim of right

Legislation:

Criminal Code (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)

Result:

Appeal allowed
Conviction and sentence set aside
Costs order set aside

Category: B

Representation:

Counsel:

Appellant: Mr R D Shaw
Respondent: Mr D P Gillett

Solicitors:

Appellant: Lavan Legal
Respondent: McLeods

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

Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562
R v Bernhard [1938] 2 KB 264
R v Pollard [1962] QWN 13
R v Waine [2006] 1 Qd R 458
Walden v Hensler (1987) 163 CLR 561

PRITCHARD J:

Factual background

In November 2006 Mr Hollywood was engaged by Mr and Mrs Lintott to build a new home for them at 22 Hawkins Place Sorrento (the property). The property adjacent to number 22, on its eastern side, namely number 24 Hawkins Place, sloped steeply downwards. A retaining wall separated the two properties, but it was ageing and cracking in places. Mr Hollywood decided that it would be necessary to replace that retaining wall. Mr and Mrs Lintott obtained the agreement of the owners of 24 Hawkins Place for the construction of a new retaining wall on the eastern boundary (the Eastern Retaining Wall). Retaining walls were also required to be constructed on the other boundaries of the property.
Mr and Mrs Lintott obtained planning and development approval for their new home in March 2006. They also made an application to the City of Joondalup (the City) for approval for the construction of retaining walls on the property. That application was initially refused and Mr and Mrs Lintott had to apply again for approval. The plans and specifications which were submitted for approval did not refer to the construction of the Eastern Retaining Wall, although they did refer to the construction of the other retaining walls on the property.
After an exchange of correspondence with the City, in the course of which they were required to modify their plans for the retaining walls at the rear of the property, Mr and Mrs Lintott were granted development approval on 10 May 2007 (although it appears that the letter advising that the approval had been granted was sent to Mr Hollywood).
Mr Hollywood then applied for a building licence in respect of the retaining walls. He was advised that the building licence had been approved on 15 June 2007. Mr Hollywood subsequently paid a Building and Construction Industry Taskforce Levy (BCIT) which was a prerequisite to the issue of the building licence. Mr Hollywood's evidence was that the amount of the levy was calculated by reference to the cost of the construction of all of the retaining walls on the property, including the Eastern Retaining Wall.
The building licence which was issued to Mr Hollywood simply referred to the construction of 'Retaining Walls'.
In about August 2007, Mr Hollywood proceeded to build the Eastern Retaining Wall.
Some time later, a complaint was made by the owners of 24 Hawkins Place in relation to matters relating to the construction of the Eastern Retaining Wall. Following inquiries by the City it was discovered that neither the building licence which had been granted for the house on the property, nor the building licence for the retaining walls, contained an approval to build the Eastern Retaining Wall.
The City subsequently prosecuted Mr Hollywood in the Magistrates Court for proceeding with a building, namely the Eastern Retaining Wall, without first submitting plans for the construction of that wall, and obtaining the approval of the City by the grant of a building licence in respect of that wall, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the Act).
Paragraph 374(1)(a) of the Act relevantly provides:
No person shall -
(a)… proceed with a building on land in a district; …
…
until he has caused to be submitted to the local government, and the local government has approved by the issue to the person of a building licence in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the building or the buildings proposed to be built … .
Contravention of s 374(1)(a) constituted an offence with a penalty of $50,000 and a daily penalty of $5,000 for each day during which the offence continued.
At trial, Mr Hollywood's case was that he believed that the documentation which had been issued to him in respect of the retaining walls on the property applied to the Eastern Retaining Wall in addition to other retaining walls on the property. He submitted that the evidence raised defences under either s 24 or s 22 of the Criminal Code (WA) and that the prosecution had not negatived those defences.
The learned magistrate found that '[n]either the plan submitted for development approval nor the plan submitted for building approval [that is, when the building licence was sought] mentioned demolishing the existing eastern boundary retaining wall or constructing the new retaining wall [ie the Eastern Retaining Wall] on that boundary' (ts 3, 25/2/10). The learned magistrate therefore found that it had been proved that no building licence was granted to Mr Hollywood to construct the Eastern Retaining Wall, and that the prosecution had proved that Mr Hollywood did not cause to be submitted, and the City had not given its approval by granting a building licence for, the plan and specifications for the Eastern Retaining Wall. The learned magistrate also held that the prosecution had negatived the defences raised by Mr Hollywood pursuant to s 24 and s 22 of the Criminal Code.
Mr Hollywood was convicted of the offence under s 374(1)(a) and fined $15,000 with costs of $6,000.
Mr Hollywood now appeals against his conviction for the offence. The sole ground of appeal concerns Mr Hollywood's defence under s 22 of the Criminal Code.

The learned magistrate's findings with respect to the s 22 defence

The learned magistrate's reasons for decision in relation to the s 22 defence were very brief. However, in order to understand them, this part of the reasons must be read in conjunction with the learned magistrate's reasons in relation to the defence under s 24 of the Criminal Code.
The learned magistrate accepted that the defences under s 22 and s 24 of the Criminal Code were capable of application to the offence under s 374(1)(a) of the Act.
In relation to the defence under s 24 of the Criminal Code the learned magistrate noted that Mr Hollywood's submission was that he held an honest and reasonable but mistaken belief that he had a licence to build the Eastern Retaining Wall. The learned magistrate summarised Mr Hollywood's evidence as being that:
[He] was honestly and reasonably mistaken as to the state of things, namely his entitlement to build a retaining wall and he is by operation of this section [ie s 24] not responsible for the omission. Any way I analyse this I am of the view that the accused's mistake was a mistake of law.
He thought that the paperwork that he supplied and the set he [sic] sent him authorised him to build that wall in question. His mistake I characterise as a mistake of law and of course that does not amount to a defence in law. If I'm wrong in that, I'm prepared to find that the accused's mistake was at least an honest one. That I (indistinct) from his declaration of a $60,000 amount cited in his BCIT levy for the dollar cost of the construction of three walls and the general favourable impression I have as to his credit. Now the prosecution have in my view [negatived] the application of that defence beyond a reasonable doubt.
The accused is an experienced builder who has been in the trade for over 30 years. It was not reasonable for him to submit plans for [a] building licence that were not in conformity with the regulations. It was not reasonable for him to mistake the approved drawings as a licence to demolish one wall and construct another. There was an explicit warning on the building licence regarding building retaining walls that were not licensed by that licence so I reject that submission (ts 4 ‑ 5, 25/2/10).
The learned magistrate then turned to the s 22 defence:
I'm not of the view that the defence has been raised on the facts. His mistake I characterised earlier as a mistake of law. I cannot characterise his act of building without the requisite licence as a claim of right. His omission to lodge the documents in the prescribed form [and] proceeding with the demolition of the old wall and the construction of the new one did not (indistinct) in my view from the [mistaken] claim. I am of the view that the prosecution have proved their case and no other defence [applies] and I find the charge proven [sic] (ts 5, 25/2/10).
Two aspects of the learned magistrate's reasons were crucial to his conclusion that the s 22 defence did not apply. First, the learned magistrate accepted that Mr Hollywood believed that the 'paperwork' he supplied to the City, and the 'paperwork' the City sent him authorised Mr Hollywood to build the Eastern Retaining Wall and that this belief was honestly held.
At first blush it is not immediately apparent what documents the learned magistrate had in mind when referring to the 'paperwork' Mr Hollywood supplied to the City, and the 'paperwork' he received from the City. However, in view of the evidence, the references to the 'paperwork' should be understood in the following way.
As I have already noted, Mr and Mrs Lintott applied for development approval for the retaining walls. Mr Hollywood's evidence was that he understood that development approval had been sought and given for all of the retaining walls on the property, including the Eastern Retaining Wall (ts 56 ‑ 57, 15/2/10, exhibit 16). Mr Hollywood then submitted an application for a building licence for the 'retaining walls' on the property (exhibit 4). Subsequently, the City requested that Mr Hollywood provide it with more information in relation to that application (exhibit 17), and he submitted drawings which showed all of the retaining walls to be constructed on the property (exhibit 22). After paying the BCIT levy, Mr Hollywood was then issued with a building licence for construction of 'retaining walls' on the property (exhibit 9). The building licence indicated that the 'above works' (that is, the retaining walls) at the property were 'authorised in accordance with the attached plans, details and specifications approved by the Building Surveyor'. Unfortunately, a copy of the plans was not attached to the copy of the building licence which had been tendered in evidence. However, counsel for both parties in the appeal confirmed that the plans approved by the grant of the building licence were tendered in evidence (exhibit 5). Those plans did not indicate that the Eastern Retaining Wall was to be constructed on the property.
Accordingly, having regard to the evidence, the learned magistrate's reference to the 'paperwork' Mr Hollywood supplied to the City must be understood as a reference to the application for the building licence which he submitted, together with the correspondence and drawings he provided to the City in response to its request for further information. Similarly, having regard to the evidence, the learned magistrate's reference to the 'paperwork' the City sent to Mr Hollywood appears to be a reference to the building licence itself, and to the plans which were approved by that building licence. (In the balance of these reasons, when I refer to the learned magistrate's reference to the 'paperwork', I mean to refer to these documents.)
I digress to note that the finding that Mr Hollywood's belief was honestly held appears somewhat incongruous, having regard to the other evidence at the trial. In particular, there was evidence that Mr Hollywood told an inspector from the City that he did not consider that he needed a building licence for the Eastern Retaining Wall because he was simply replacing an existing retaining wall. However, the learned magistrate did not refer to this evidence at all in the course of his reasons. At the same time, the learned magistrate clearly identified the evidence upon which he relied to make his finding that Mr Hollywood's belief was honestly held, namely Mr Hollywood's demeanour, together with his evidence that he paid the BCIT levy calculated by reference to the cost of building all of the retaining walls, including the Eastern Retaining Wall. Counsel for the City did not seek to challenge the learned magistrate's finding that Mr Hollywood's belief was honestly held.
The second aspect of the learned magistrate's reasons which is of particular significance for present purposes is his conclusion that Mr Hollywood's act of building the Eastern Retaining Wall without the requisite licence could not be characterised as a claim of right, having regard to the conclusion he had already reached that Mr Hollywood's belief constituted a mistake of law. Accordingly, the learned magistrate did not consider that the defence of an honest claim of right under s 22 of the Criminal Code had been raised on the facts.
For completeness, I digress to note that the meaning of the penultimate sentence of the extract from the learned magistrate's reasons which I have set out above is far from clear. On one view, the learned magistrate appears to have concluded that Mr Hollywood did not demolish the existing retaining wall and construct the Eastern Retaining Wall as a result of his mistaken belief. However, neither counsel was able to offer any explanation for the learned magistrate's remark in the context of his discussion of s 22 of the Criminal Code. As I have already noted, there was some evidence that Mr Hollywood told an inspector from the City that he that he did not need a building licence for the Eastern Retaining Wall because he was merely replacing an existing wall, as opposed to building a new wall where none had previously existed. Perhaps it was this evidence to which the learned magistrate was referring in making this observation. If it was, however, then it is surprising that the learned magistrate did not make any express reference in his reasons to the evidence of the statements made by Mr Hollywood to the inspector. In addition, I note that this evidence was not relied upon by counsel for the prosecution as a reason why a defence under s 22 of the Criminal Code was not open in this case. In all of the circumstances, and having regard to the submissions of both counsel on the appeal in relation to this issue, I have proceeded on the understanding that the sole basis for the learned magistrate's conclusion that the prosecution had negatived the s 22 defence was that he did not consider that Mr Hollywood's belief gave rise to an honest claim of right for the purposes of s 22 of the Criminal Code.

The ground of appeal

The sole ground of appeal is that:
The learned Magistrate having found the accused honestly believed that the building licence included the retaining wall, erred in law in finding that there was no honest claim of right.
Section 22 of the Criminal Code provides:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The term 'property' is defined in s 1(1) of the Criminal Code to include real and personal property and everything, animate or inanimate, capable of being the subject of ownership.
Counsel for Mr Hollywood submitted that s 22 was capable of application to the offence provision in s 374(1)(a) of the Act. It was submitted that the construction of the Eastern Retaining Wall related to 'property' as defined in the Criminal Code and that s 22 of the Criminal Code should be given a wide interpretation. Counsel submitted that Mr Hollywood's honestly held belief - that the paperwork that was supplied to the City and that the City sent him authorised him to build the Eastern Retaining Wall - was sufficient to found an honest claim of right. It was submitted that having found that Mr Hollywood honestly believed that the 'paperwork' constituted an approval for the construction of the Eastern Retaining Wall, the learned magistrate should have concluded that Mr Hollywood had an honest claim of right to build that wall. In other words, had Mr Hollywood's belief been well founded, he would have been entitled to construct the Eastern Retaining Wall. It was therefore submitted that Mr Hollywood's belief gave rise to an honest claim of right for the purposes of s 22 of the Criminal Code.
For the reasons set out below, I accept those submissions.

The defence under s 22 was made out

The learned magistrate was correct to find that the Act did not exclude the defence under s 22 of the Criminal Code. It is now well established that by s 36 of the Criminal Code, the provisions of Chapter V of the Criminal Code, which deals with criminal responsibility and includes s 22, apply to all persons charged with any offence against the statute law of Western Australia: Molina v Zaknich [2001] WASCA 337; (2001) 24 WAR 562 [16] (Malcolm CJ), [72] ‑ [101] (McKechnie J, Templeman J agreeing); Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 [75] (Buss JA, Miller JA & Newnes AJA agreeing).
The learned magistrate appears to have concluded that because he had earlier characterised Mr Hollywood's belief that he was authorised to construct the Eastern Retaining Wall as a mistake of law, s 22 was necessarily inapplicable. That did not follow. A person acts in the exercise of an honest claim of right if he honestly believes that he is entitled to do what he is doing. The belief may involve a claim as to the law (other than the criminal law), or it may involve a mixed claim of law and fact: R v Pollard [1962] QWN 13, 29 (Gibbs J, Stanley & Hanger JJ agreeing); Molina v Zaknich [78] (McKechnie J, Templeman J agreeing). The fact that Mr Hollywood's belief involved a claim as to the law therefore did not preclude the application of s 22.
The City submitted that the learned magistrate's finding that Mr Hollywood's honestly held belief was a mistake of law amounted to a finding that Mr Hollywood was ignorant of the law, and that as a result the learned magistrate was correct to find that a defence under s 22 had not been established. There were two bases for this submission. First, counsel for the City submitted that when the learned magistrate characterised Mr Hollywood's belief as a mistake of law he meant that it constituted an ignorance of the law 'because those words … are used interchangeably by magistrates' (ts 18). I am unable to accept that submission. The learned magistrate first characterised Mr Hollywood's belief as a mistaken belief as to law in the context of his discussion of the defence under s 24 of the Criminal Code. In characterising Mr Hollywood's belief as a mistake of law in this context, the learned magistrate was simply differentiating the nature of Mr Hollywood's belief from the belief required in order to found a defence under s 24 of the Criminal Code, namely a belief as to a state of things. Nothing in the balance of the learned magistrate's reasons for decision suggests that the learned magistrate's characterisation of Mr Hollywood's belief as a mistaken belief as to law was intended to convey the view that Mr Hollywood's belief in fact constituted an ignorance of the law.

Secondly, the City submitted that Mr Hollywood's belief constituted an ignorance of the law because the plans approved by the City in granting the building licence for the retaining walls did not show the Eastern Retaining Wall. Accordingly, it was submitted, Mr Hollywood's belief that he could build the Eastern Retaining Wall necessarily constituted an ignorance of the requirements of s 374(1)(a) of the Act and therefore an ignorance of the law.
That submission does not accurately reflect the finding made by the learned magistrate to which he referred in this part of his reasons. The learned magistrate found that the plans approved by the City in granting the building licence did not show the Eastern Retaining Wall (and therefore did not approve the construction of that Wall). However, the learned magistrate did not find that Mr Hollywood believed that he was authorised to build the Eastern Retaining Wall even though the plans did not refer to the construction of that Wall. Rather, the learned magistrate accepted that Mr Hollywood honestly believed that the 'paperwork' that he supplied and received authorised him to build the Eastern Retaining Wall. That finding reflected the evidence given by Mr Hollywood. His evidence was that the development approval for the retaining walls referred to all the retaining walls on the property, including the Eastern Retaining Wall. Mr Hollywood's evidence was that when he received the building licence for the retaining walls, he understood that he was entitled to build all the retaining walls on the property. The belief that the learned magistrate accepted was honestly held by Mr Hollywood therefore did not pertain to the requirements of the law, and in particular to the requirement in s 374(1)(a) of the Act that the City approve the plans for the Eastern Retaining Wall, but concerned the authority Mr Hollywood understood he had as a result of the submission and receipt of the 'paperwork'.
From this perspective, I note that this case appears, on its facts, to be a rather unusual one. The learned magistrate concluded that a builder with 30 years of experience who received a building licence in respect of 'retaining walls' and which approved a plan that did not show the Eastern Retaining Wall, nevertheless honestly believed that that documentation authorised him to build the Eastern Retaining Wall in addition to the other retaining walls shown on the plan.
Clearly, had Mr Hollywood's belief not been mistaken - that is, had the building licence and the plan for the retaining walls in fact referred to the construction of the Eastern Retaining Wall - the prosecution would have failed to prove one of the elements of the offence under s 374(1)(a) of the Act, namely that the City had not approved, by the issue of a building licence, the specifications of, and plan for, the Eastern Retaining Wall. The defence under s 22 of the Criminal Code will apply where the belief claimed, if true, would have negatived an element of the offence in question or constituted a defence to it: Interim Advance Corporation v Fazio [77] (Buss JA, Miller JA & Newnes AJA agreeing), citing Walden v Hensler (1987) 163 CLR 561, 581 (Deane J).
Counsel for the City relied on an alternative submission in support of the correctness of the learned magistrate's conclusion that a defence under s 22 of the Criminal Code could not apply in this case. Counsel for the City submitted that the evidence did not raise a claim of right by Mr Hollywood to construct the Eastern Retaining Wall. This submission had two bases. First, it was submitted that Mr Hollywood's belief that he was entitled to build that Wall derived solely from the building licence he was issued in relation to the retaining walls. In that event, it was submitted that Mr Hollywood's belief, even if it were true, could not have negatived an element of the offence under s 374(1)(a) because the City had not approved plans which referring to the construction of the Eastern Retaining Wall. However, for the reasons set out above, in my view the learned magistrate's reference to the 'paperwork' which Mr Hollywood submitted and received, must be understood, in the factual context, as including the building licence and the plans approved by it.
The second basis for counsel's submission was that:
[A]n honest claim of right in relation to erecting a structure on land, where the erection of that structure requires approval by a statutory authority, can only exist where that approval is granted. If a structure is erected without having obtained that approval … the person who erected the structure cannot claim to have had a right to erect the structure … because the right to erect the structure is derived from the approval itself (par 7.13 City's submissions).
I am unable to accept that submission, for three reasons. First, it is inherently circular. The effect of the submission would be that a defence under s 22 could not have been relied upon unless the approved plan in relation to the retaining walls had referred to the construction of the Eastern Retaining Wall. However, had the plan approved the construction of the Eastern Retaining Wall, Mr Hollywood would not have committed an offence at all.
Secondly, the City's submission amounted to a submission that the defence in s 22 is not capable of application to the offence in s 374(1)(a) of the Act. While it would be open to the Parliament to exclude the operation of s 22 of the Criminal Code in relation to an offence, there is nothing on the face of s 374(1)(a), or in its legislative context, which conveys an intention by the Parliament to do so in relation to the offence in s 374(1)(a). Indeed, counsel for the City made it clear that he did not submit that s 374(1)(a) excluded the operation of s 22. Rather, his submission was solely that the defence could not apply to an offence under s 374(1)(a) in circumstances such as these because in order for the defence in s 22 to apply, there would have to be a foundation for the honest claim of right, namely the approval for the erection of the structure.
Thirdly, the City's submission ignores the premise of s 22 of the Criminal Code, which is that an honest claim of right within s 22 may be made out 'even though it may be unfounded in law or in fact': R v Bernhard [1938] 2 KB 264, 270; R v Pollard (27 ‑ 29) (Gibbs J, Stanley & Hanger JJ agreeing); Walden v Hensler (568 ‑ 569) (Brennan J), (600) (Toohey J); R v Waine [2006] 1 Qd R 458 [23] (Keane JA, McMurdo P & Wilson J agreeing); Molina v Zaknich [78] (McKechnie J, Templeman J agreeing); Interim Advance Corporation v Fazio [79] (Buss JA, Miller JA & Newnes AJA agreeing).
In the present case, Mr Hollywood's claim of right was based on his belief that the 'paperwork' which he submitted to, and received from, the City, and which included the building licence and the plan for the construction of the retaining walls, authorised his construction of the Eastern Retaining Wall. Had that been the case, that would have negatived an element of s 374(1)(a) of the Act. In those circumstances, the defence in s 22 applied, and the learned magistrate erred in failing to so find.

Conclusion and orders

Mr Hollywood has demonstrated that the learned magistrate erred in his conclusion that the prosecution had negatived the defence under s 22 of the Criminal Code which was raised by Mr Hollywood. The appropriate course is therefore to allow the appeal and to set aside the conviction recorded, the sentence imposed, and the costs order made by the learned magistrate. I will hear counsel as to the precise form of the orders which should be made in view of my decision.