Integrated Waste Services PL v Harvey & Anor No. Scgrg-98-1126 Judgment No. S82

[1999] SASC 82

INTEGRATED WASTE SERVICES PTY LTD  v  HARVEY AND MAGISTRATES COURT OF SOUTH AUSTRALIA
[1999] SASC 82

Magistrates Appeal:  Application for Judicial Review

1. MULLIGHAN J This is an application for judicial review in the nature of certiorari to remove into this Court to be quashed the decision of a learned Magistrate that he had jurisdiction to hear and determine a complaint laid by the first defendant against the plaintiff.

2. The first defendant is the Manager, Recycling and Waste, of the Environment Protection Authority. He laid the complaint on 8th August 1997 alleging that the plaintiff, being the holder of an environmental authorisation, contravened a condition of that authorisation. Contravention of such a condition is an offence pursuant to s45 of the Environment Protection Act 1993. The authorisation was a licence which related to a waste depot at Hines Road, Wingfield. The nature of the alleged breach is of no significance for present purposes.

3. The complaint was laid in the Magistrates Court.  It came before a learned Magistrate on various occasions.  A question of jurisdiction of the Magistrates Court was raised by the plaintiff.  On 22nd May 1998 the learned Magistrate heard argument as to that matter and decided that he did have jurisdiction to hear the complaint.  He did not give reasons and has since indicated that as the issue of jurisdiction was raised as a preliminary matter, he did not propose to give reasons for his decision until after the completion of the hearing of the complaint so that delay should not be caused by proceedings for judicial review of “individual points of law”.  Nevertheless these proceedings have been instituted.

4. The plaintiff’s contention is that jurisdiction of the Magistrates Court is ousted by s132 of the Act which provides:

   “s132........ Offences constituted by this Act lie within the criminal jurisdiction of the Environment, Resources and Development Court.”

I shall refer to that Court as “the ERD Court”.

1. It is submitted that this section confers exclusive jurisdiction upon the ERD Court and that the words “lie within” suggest a complete encapsulation of the jurisdiction by that Court. It is argued that they are not words of concurrency. S7 of the Environment, Resources and Development Court Act 1993 (“the ERD Court Act”) provides:

   “s7(1)....... Subject to this section, the Court will have the jurisdiction (including the jurisdiction to try a charge of an offence) conferred on it by or under this or any other Act.

   (2)The regulations may confer on the Court jurisdiction in respect of offences against a specified Act or statutory provision.

   (3).... The Court will deal with a charge of an offence in accordance with the procedures appropriate to a summary offence (even though the offence may in fact be an indictable offence) and the Summary Procedure Act 1921 applies to the Court subject to any additions, exclusions or modifications prescribed by the regulations as if references to summary offences extended to offences in respect of which jurisdiction is conferred under this section and as if references to the Magistrates Court extended to the Court.

   (4)Where proceedings for an indictable offence are brought in the Court -

   (a)......... the Court cannot impose a fine that exceeds the maximum fixed by the relevant Act or twice a Division 1 fine (whichever is the lesser); and

   (b)the Court cannot impose a sentence of imprisonment that exceeds the maximum fixed by the relevant Act or two years (whichever is the lesser).

   (5).... The conferral of jurisdiction on the Court in respect of offences does not limit the jurisdiction of any other court.”

The plaintiff contends that s7(5) refers only to a “conferral of jurisdiction in respect of offences”. S7(1) does not confer jurisdiction in respect of offences, per se. That is the language of s7(2). It is further submitted that interpretation of these provisions in this way is supported by legislative intention to be discerned from the legislative package comprised of the Environment Protection Act, the ERD Court Act and the Development Act 1993. The contention is that these Acts are the consequence of an extensive review of planning laws in this State. Parliament intended to create “one stop shopping” and a specialist court, the ERD Court, to deal with all planning matters and prosecutions in that one specialist Court. In support of this submission, attention is drawn to the second reading speech of the Minister of the Crown responsible for introducing the Bills into Parliament which become the respective Acts.

1. I do not think the Planning Review, which preceded the preparation of the Bills on the second reading speech, assists in the construction of the relevant provisions of the Environment Protection Act or the ERD Court Act in that way. Whilst the Planning Review states that the proposal is the establishment of a single development Court to handle all disputes and enforcement, the question is whether Parliament proceeded that far and excluded the jurisdiction of the Magistrates Court. In the second reading speech, the Minister merely said of cl 133 of the Bill, which became s132 of the Act:

   “This clause provides that the [ERD Court] may, in its criminal jurisdiction, hear criminal proceedings in relation to offences constituted by this measure.”

There is no expression of the intention to exclude the Magistrates Court from exercising jurisdiction only to include the ERD Court.

1. S9 of the Magistrates Court Act 1991 provides that subject to the Summary Procedure Act 1921, the Court has jurisdiction, inter alia, “to hear and determine a charge of a summary offence”: s9(c). A summary offence is defined in s5(2) of the Summary Procedure Act and an offence under s45 of the Environmental Protection Act comes within that definition as it is an offence which is not punishable by imprisonment and the maximum fine, $120,000 for a body corporate and a Division 1 fine, which is $60,000, for a natural person, does not exceed twice a Division 1 fine.

2. These various legislative provisions must be considered together. Clearly, Parliament intended that the jurisdiction of the ERD Court could be concurrent with that of another court by virtue of s7(5) of the ERD Court Act. Clear words would be needed to oust the jurisdiction of the Magistrates Court to hear and determine charges of summary offences. Such words are not to be found in s7 of the ERD Court Act or s132 of the Environment Protection Act. If s132 of that Act is read in conjunction with s7(5) of the ERD Court Act and s9 of the Magistrates Court Act, it is clear that Parliament intended there to be such concurrent jurisdiction and, in my view, that purpose was achieved.

3. Furthermore, the wording of s132 of the Environment Protection Act does not suggest exclusive jurisdiction in the ERD Court.  In my view, the words “lie within” do not suggest exclusive jurisdiction in the ERD Court but rather the conferring of jurisdiction in that court  They are not capable of inferentially excluding jurisdiction from any other court.

4. Attention has been drawn to Keane v The City of Salisbury (1995) EDLR 308.  In that case the Full Court was concerned with an aspect of jurisdiction of the ERD Court.  King CJ, with whom the other members of the Court agreed, in the course of describing the jurisdiction, said at p310:

   “Much, if not all, of the jurisdiction of the Court is conferred by the provisions of the Development Act and regulations made thereunder. In general terms, it has a summary jurisdiction, concurrent with that of the Magistrates Court to deal with offences under the Development Act, a jurisdiction to make orders to remedy or restrain breaches of the Development Act, a jurisdiction to hear and determine appeals against certain decisions of Development authorities, and a jurisdiction to determine disputes arising under Building Rules.” [the underlining is mine]

5. S105(4) of the Development Act is in the same terms as s132 of the Environment Protection Act.  Whilst it must be acknowledged that the observation of King CJ of concurrent summary jurisdiction of the ERD Court and the Magistrates Court is descriptive only and not essential to the decision in Keane, it is nonetheless persuasive authority for the proposition that such jurisdiction is concurrent.  With respect, I agree with it and follow it.  It will be seen that King CJ accepted that the words “lie within” do not denote exclusive jurisdiction, a conclusion with which I agree.

6. I mention one remaining argument addressed on behalf of the plaintiff.  In Keane the Court considered s28 of the ERD Court Act which provides:

   “s28. The Court may, on matters within its jurisdiction, make binding declarations of right whether or not any consequential relief is or could be claimed.”

The Court concluded that the ERD Court had jurisdiction to grant declaratory relief even if there were no other proceedings involving the same subject matter.  If the subject matter of the declaratory relief had been conferred on the ERD Court, then the jurisdiction to grant such relief existed:  see p310.

1. Mr Crocker, for the plaintiff, argued that the decision in Keane means that when the alleged breach of condition, which is the subject matter of the present proceedings, occurred, the jurisdiction of the ERD Court was invoked so that at the time of laying the complaint, there was a court, the ERD Court, the jurisdiction of which had been invoked.

2. I reject that argument.  The issue is whether the ERD Court has exclusive jurisdiction over summary matters.  It is beyond question that it has jurisdiction, but the jurisdiction is not invoked until a relevant proceeding is commenced.  Both the ERD Court and the Magistrates Court have the jurisdiction to hear summary matters.  Once the initiating proceeding is commenced, the jurisdiction of the selected court is invoked.  I do not think this aspect of the decision in Keane is of any assistance in resolving the issue.

3. In my view, the learned Magistrate correctly decided that the Magistrates Court had jurisdiction to hear and determine the complaint.  I dismiss this action.