Kezic v City of Stirling
[2021] WASCA 187
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KEZIC -v- CITY OF STIRLING [2021] WASCA 187
CORAM: MAZZA JA
MITCHELL JA
TOTTLE J
HEARD: 4 AUGUST 2021
DELIVERED : 21 OCTOBER 2021
FILE NO/S: CACR 101 of 2020
BETWEEN: ROSARIA KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
FILE NO/S: CACR 102 of 2020
BETWEEN: ZIVKO KEZIC
Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: HILL J
File Number : SJA 1029 of 2019 and 1030 of 2019
Catchwords:
Criminal law - Prosecution by local government for contravention of local law relating to fencing - Accused failed to comply with notice to remove fence - Accused alleged no power to give notice - Local law contained power to give notice
Legislation:
City of Stirling Fencing Local Law 2008, cl 3.1, cl 5.1, cl 5.2, cl 5.3
Criminal Procedure Act 2004 (WA), s 55, s 66, s 76
Dividing Fences Act 1961 (WA), s 3, s 7, s 8, s 9
Interpretation Act 1984 (WA), s 5, s 46
Local Government Act 1995 (WA), s 3.1, s 3.5, s 3.10, s 3.25, s 9.16
Result:
CACR 101 of 2020
Leave to appeal refused
Appeal dismissed
CACR 102 of 2020
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
CACR 101 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | DP Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods Barristers & Solicitors |
CACR 102 of 2020
Counsel:
| Appellant | : | In person |
| Respondent | : | DP Gillett |
Solicitors:
| Appellant | : | In person |
| Respondent | : | McLeods Barristers & Solicitors |
Cases referred to in decision:
Gilbert v Goodall [2012] WADC 75
Kezic v City of Stirling [2020] WASC 241
Titelius v Crowe [2017] WADC 116
Wilson v McDonald [2009] WASCA 39(S)
JUDGMENT OF THE COURT:
Introduction
On 12 February 2019 the appellants, Rosaria Kezic and Zivko Kezic, were convicted by a magistrate of failing to comply with a notice contrary to cl 5.2(1) of the City of Stirling Fencing Local Law 2008 (Local Law). The appellants did not attend the hearing and the convictions were entered in their absence. The appellants were ordered to pay a fine of $1,000 and court costs of $2,500. The appellants' subsequent applications for leave to appeal against conviction and sentence were dismissed.[1] The appellants now apply for leave to appeal against the decision of the primary judge. On 26 August 2020 Mazza JA ordered the applications for leave to appeal be referred to the hearing of the appeal.
[1] Kezic v City of Stirling [2020] WASC 241 (primary reasons).
The critical issue in these appeals is whether the respondent had the power to give the appellants the notice with which they failed to comply. The notice was given on 10 January 2018 and required the appellants to remove a fence on their property.[2] The fence did not comply with the provisions of the Local Law - it was constructed of wire, bamboo pickets, metal posts, shade cloth, insulation material, a car windscreen cover and plastic. The appellants did not remove the fence. On 30 May 2018 the respondent lodged prosecution notices charging each appellant with a failure to comply with the notice given to them.
[2] Combined Blue and Green Appeal Book 185.
The appellants contend that the Local Government Act 1995 (WA), which they identified as the only source of potential power for giving notices, does not authorise the respondent to give a notice requiring a land owner to remove a fence other than in limited circumstances and those limited circumstances did not exist in this case. Building on that contention the appellants argue the prosecutions commenced by the respondent were unlawful prosecutions which the Magistrates Court had no jurisdiction to hear. The appellants support this argument with an argument to the effect that the Dividing Fences Act 1961 (WA) regulated disputes about fences and provided for civil remedies. Consequently, so the appellants argue, there was no scope for the respondent to have commenced criminal prosecutions against them.
The appeals can only succeed if the appellants succeed on their argument that the respondent had no power to give the notice with which they did not comply. We will refer to the appellants' grounds of appeal and the reasoning of the primary judge and magistrate in more detail later but, first, it is convenient to evaluate the merits of the appellants' argument on the critical issue of the power to give a notice.
The starting point is the statutory framework.
The statutory framework
Local Government Act
The Local Government Act governs the system of local government in Western Australia. Part 3 of the Act sets out the functions of local government (relevantly) as follows:
3.1.General function
(1)The general function of a local government is to provide for the good government of persons in its district.
(2)The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3)A liberal approach is to be taken to the construction of the scope of the general function of a local government.
…
3.5Legislative power of local governments
(1)A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.
(2)A local law made under this Act does not apply outside the local government's district unless it is made to apply outside the district under section 3.6.
(3)The power conferred on a local government by subsection (1) is in addition to any power to make local laws conferred on it by any other Act.
...
(4)Regulations may set out –
(a)matters about which, or purposes for which, local laws are not to be made; or
(b)kinds of local laws that are not to be made,
and a local government cannot make a local law about such a matter, or for such a purpose or of such a kind.
…
3.10Creating offences and prescribing penalties
(1)A local law made under this Act may provide that contravention of a provision of the local law is an offence, and may provide for the offence to be punishable on conviction by a penalty not exceeding a fine of $5 000.
(2)If the offence is of a continuing nature, the local law may make the person liable to a further penalty not exceeding a fine of $500 in respect of each day or part of a day during which the offence has continued.
(3)The local law may provide for the imposition of a minimum penalty for the offence.
(4)The level of the penalty may be related to
(a)the circumstances or extent of the offence;
(b)whether the offender has committed previous offences and, if so, the number of previous offences that the offender has committed.
Section 3.25 confers power on a local government to give an owner or, in certain circumstances an occupier, of land a notice requiring the action specified in the notice to be undertaken. It provides as follows:
(1)A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that -
(a)is prescribed in Schedule 3.1, Division 1; or
(b)is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.
(2)Schedule 3.1 may be amended by regulations.
(3)If the notice is given to an occupier who is not the owner of the land, the owner is to be informed in writing that the notice was given.
(4)A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held.
(5)A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice.
(6)A person who fails to comply with a notice under subsection (1) commits an offence.
Schedule 3.1, div 1, specifies the things a notice given under s 3.25 may require to be done. The only relevant reference to a fence is in cl 12 which provides:
Ensure that an unsightly, dilapidated or dangerous fence or gate that separates the land from land that is local government property is modified or repaired.
Part 9 div 2 of the Act regulates enforcement and legal proceedings taken by a local government and contains s 9.15 ‑ s 9.22. These provisions establish a regime that enables service of an infringement notice on a person who is believed to have committed a prescribed offence. An infringement notice permits the person on whom it is served to pay a modified penalty. The benefit of paying the modified penalty is that it prevents the bringing of proceedings and the imposition of a more severe penalty.
Local Law (City of Stirling Fencing Local Law 2008)
The Local Law is made 'under the powers conferred by the Local Government Act 1995' and came into force on 26 March 2009. [3]
[3] Local Law, cl 1.2.
Part 3 of the Local Law is headed 'Fencing Materials and Maintenance'. Clause 3.1 of the Local Law states, in effect, that a person must not construct a fence except from the materials specified for a sufficient fence in sch 1 or 2 of the Local Law or any other materials as approved in writing by the City. Schedule 1 provides that a sufficient fence on a residential lot is to be constructed from timber, corrugated pressed cement or steel sheeting, brick, stone, concrete, or be a composite of a number of specified materials (not including the materials with which the appellants' fence was constructed).
The enforcement of the Local Law is dealt with in pt 5. Clause 5 provides as follows:
5.1Notices of breach
(1)The City's powers to give notices, and take action in respect of notices, are contained in the Local Government Act 1995.
(2)If, in the opinion of the City, a person has breached a provision of this local law, the City may give to that person a written notice requiring him or her to remedy that breach before the date specified in the notice.
5.2Offences
(1)A person who fails to comply with a notice under clause 5.1, or contravenes any provision of this local law commits an offence.
(2)A person who commits an offence under this local law is liable, on conviction to a penalty not exceeding $5000 and, if the offence is of a continuing nature, an additional penalty not exceeding $500 for each day or part of a day during which the offence has continued.
5.3Modified Penalties
(1)An offence against any provision of this local law is a prescribed offence for the purposes of section 9.16 (1) of the Local Government Act 1995.
(2)Unless otherwise specified, the amount of the modified penalty for an offence against any provision of this local law is $125.
It is important to pause at this point in the review of the statutory framework to consider how the reference to the Local Government Act in cl 5.1(1) of the Local Law should be understood. The Interpretation Act 1984 (WA) is one part of the law of Western Australia which governs the interpretation of the written laws of the State. In the Interpretation Act 'written law' means all Acts for the time being in force and all subsidiary legislation for the time being in force.[4] Subsidiary legislation means any proclamation, regulation, rule, local law, by‑law, order, notice, rule of court, local or region planning scheme, resolution, or other instrument, made under any written law and having legislative effect.[5] The Local Government Act is an Act, and the Local Law is subsidiary legislation made under it, for the purposes of the Interpretation Act.
[4] Interpretation Act 1984 (WA), s 5.
[5] Interpretation Act 1984 (WA), s 5.
Part VI of the Interpretation Act governs the interpretation of subsidiary legislation. Section 46 provides as follows:
46.Reference to written law includes reference to subsidiary legislation made under it
(1)A reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under that written law.
(1a)An example of the operation of subsection (1) is that a reference in an Act to 'this Act' includes a reference to any subsidiary legislation made under the Act.
(2)A reference in a written law to an Imperial Act or a Commonwealth Act shall be construed so as to include a reference to any subsidiary legislation made under that Act.
When applied to the reference to the Local Government Act in cl 5.1 of the Local Law, the effect of s 46 of the Interpretation Act is to expand the meaning of the Local Government Act to include, not just the Act itself, but all subsidiary legislation made under it, including the Local Law. As a consequence, courts must interpret cl 5.1 of the Local Law as if it read:
The City's powers to give notices, and take action in respect of notices, are contained in the Local Government Act 1995 and any subsidiary legislation including this local law.
In other words, the Local Law is the provision of the Local Government Act, which by cl 5.1(2), confers the power on the respondent to give notices in respect of fences that constitute a breach of the Local Law.
In any event, the language of cl 5.1(2) and cl 5.2(1) is unmistakeably clear in demonstrating an objective legislative intention to confer a power to issue notices which is additional to that contained in s 3.25 of the Local Government Act. Clause 5.1(2) expressly provides that the City may give a written notice to a person. It provides for the condition for the exercise of that power, namely the formation of the opinion by the City that a person has breached a provision of the Local Law. It also provides for the content of the notice, which may require the person to remedy the breach before a specified date. Clause 5.2 provides for an offence of failing to comply 'with a notice under clause 5.1'. Whatever the meaning of cl 5.1(1), which is not an operative provision of the Local Law, it is apparent from the Local Law construed as a whole that cl 5.1(2) confers an independent power to give a relevant notice.
Dividing Fences Act
The Dividing Fences Act governs the construction and repair of dividing fences and how disputes between neighbours over dividing fences should be resolved.
Section 3 of the Dividing Fences Act provides that:
Nothing in this Act affects the provisions of the Land Administration Act 1997, the Local Government Act 1995, the Vermin Act 1918, or the Bush Fires Act 1954, and where any provision of those Acts is inconsistent with any provision of this Act the former provision, to the extent of the inconsistency, prevails.
Part II of the Act is entitled 'Construction of dividing fences'. Section 7 provides that owners of adjoining lands not divided by a sufficient fence are liable to join or contribute equally to the construction of a dividing fence between those lands. Section 8 permits an owner of land to give a notice to an owner of adjoining land compelling them to contribute to the construction of a dividing fence. Section 9 concerns what happens when owners of adjoining land are in disagreement about the construction of a dividing fence between their properties. It provides, in effect, that if within 21 days after giving the notice the owners are not in agreement about the kind of fence that is to be constructed, either owner can apply to a court at the place nearest to the proposed fence to resolve the disagreement.
The respondent had power to give notice to the appellants
When it is understood that the Local Law, by reason of the operation of s 46 of the Interpretation Act, forms part of the Local Government Act it may be appreciated that it is immaterial that the power to give a notice in the circumstances that arose in this case is not found in sch 3 of the Local Government Act. It is immaterial because the power to give the appellants notice requiring them to remove the fence on their property is found in cl 5.1(2) of the Local Law which forms part of the Local Government Act.
The Dividing Fences Act does not exclude or limit the operation of the Local Government Act or the Local Law as they operate in respect of fences. That is, the existence of the regime established by the Dividing Fences Act for regulating disputes between neighbours over dividing fences, does not limit the powers of local government to regulate the construction of fences in its district and take enforcement action, including criminal proceedings in respect of offences, against those who breach provisions of local laws relating to fences. This is made plain by s 3 of the Dividing Fences Act that expressly provides that nothing in the Dividing Fences Act affects the provisions of the Local Government Act.
We turn now to the grounds of appeal.
The grounds of appeal
The grounds of appeal were the same in each appeal.
Ground 1
Ground 1 embodies the appellants' arguments that the respondent had no power to give them a notice requiring them to remove the fence and that the Dividing Fences Act operated in such a way as to preclude proceedings by way of criminal prosecutions. In so far as the ground relies on those arguments it fails for the reasons we have given.
The appellants raise a further argument under this ground which concerned the primary judge's reasoning as to the source of the respondent's power to give a notice requiring the removal of a fence. In the primary reasons, her Honour summarised the effect of s 9.15 ‑ s 9.22 of the Local Government Act.[6] Her Honour noted that an offence under cl 5.3 of the Local Law was a prescribed offence and concluded that as a result an infringement notice could be issued under s 9.16 of the Local Government Act if an authorised person has reason to believe that the prescribed offence in cl 5.2 of the Local Law had been committed.[7] On that basis her Honour concluded that the respondent had power to issue 'infringement notices' to the appellants on 10 January 2018.
[6] Primary reasons [40].
[7] Primary reasons [54].
The primary judge's characterisation of the notice as an infringement notice issued under s 9.16(1) was, with respect, an error. The notice did not purport to be an infringement notice under s 9.16 of the Local Government Act. By its express terms it was a notice given pursuant to cl 5.1(2) of the Local Law. It stated that there had been a breach of cl 3.1(1) of the Local Law and gave notice that if the breach was not remedied by removing the fence the appellants would commit an offence.[8] The notice did not give the appellants the option of paying a modified penalty and thereby avoid proceedings.
[8] Combined Blue and Green Appeal Book 185.
The primary judge's error in identifying s 9.16(1) as the source of the respondent's power to give the appellants a notice does not, however, affect the outcome of this appeal. At the hearing before the magistrate, counsel for the respondent addressed the issue of the respondent's power to give the appellants the notice on 10 January 2018 as follows:[9]
Perhaps the other issue that the accused raise is they say that a notice can't be given under these local laws, and in that regard, your Honour, I will take your Honour to clause 5.1 on page 752 and you will see there the clause 5.1.1 says the City's power to give notices and take action in respect of notices are contained in a Local Government Act 1995 and then subclause 2 specifically provides for a notice to be given under the local law to remedy a breach under the local law.
Now, the accused have repeatedly relied on or referred to clause 5.1.1, saying, you know, 'That says that notices are given under the Local Government Act and the Local Government Act doesn't say anything about giving notices for fences.' So they say you can't give a notice, but pursuant to the provisions of sections 46 and 47 of the Interpretation Act, this local law actually forms part of the Local Government Act.
It's made under the Local Government Act, forms part of the Local Government Act and so, in effect, a notice given under this local law is a notice given under the Local Government Act. So, really, in my submission clause 5.1.1 is simply a statement of the law, and then clause 5.1.2 provides the power to give a notice which is what has happened in this case. So, in my submission, that deals with the issues and had that matter been raised today that's how I would've dealt with that matter today, your Honour.
[9] Combined Blue and Green Appeal Book 143.
The magistrate gave brief oral reasons for her decision to convict. In the course of those reasons her Honour referred to the submissions made by the respondent's counsel as to the power to give the notice, and said she accepted, 'there is jurisdiction for the notice to have been sent'.[10] Thus, the convictions were based on the law as we have stated it. The error made by the primary judge does not reflect adversely on the magistrate's decision who, in reaching the conclusion that the appellants were guilty, made no error of law. Ground 1 has no merit.
Ground 2
[10] Combined Blue and Green Appeal Book 145.
Ground 2 overlaps substantially with the first ground. The appellants contend that the primary judge erred in law by failing to have regard to legal authorities on which they relied to establish their argument about the absence of power on the part of the respondent to give them a notice and the operation of the Dividing Fences Act. The decisions to which the appellants refer are Titelius v Crowe,[11] and Gilbert v Goodall.[12] The primary judge did not refer to either of these decisions in her reasons but this does not mean that she did not have regard to them. In any event, each of these decisions was concerned with cases under the Dividing Fences Act and was not relevant to the critical issue in this appeal - the source of the respondent's power to give a notice requiring the removal of a fence. Moreover, as we have already observed, the Dividing Fences Act does not affect the operation of the Local Government Act of the which the Local Law forms part. Ground 2 has no merit.
Ground 3
[11] Titelius v Crowe [2017] WADC 116.
[12] Gilbert v Goodall [2012] WADC 75.
Ground 3 asserts the primary judge erred by failing to give any weight to documents the appellants considered were highly relevant. These documents were as follows. The first was a letter dated 10 January 2018 sent to the appellants by the respondent which enclosed the notice of breach with which the appellants failed to comply.[13] The letter referred to an earlier letter which was said to have 'addressed dividing fence matters' at the appellants' property. The second document was an email sent to Mrs Kezic on 19 September 2017 from an officer of the respondent replying to an email sent by her.[14] In the email of 19 September 2017 the respondent's officer wrote:
The Dividing Fences Act 1961 applies to fences which are constructed on (or near) a boundary to another property.
The boundary fence (and things attached to the boundary fence) between your lot and the neighbouring property represents a civil matter to be resolved between the neighbouring landowners in accordance with the provisions of the Dividing fences Act 1961. The Dividing Fences Act is not administered by the City and any disagreement with a neighbouring landowner regarding boundary fences is a civil matter.
The third document is an email sent to Mrs Kezic by one of the respondent's councillors.[15] In the email the councillor said that he had spoken to officers of the respondent about 'your issues with your neighbour' and he agreed with what he had been told by them which was that 'it [was] a civil matter between you and your neighbour and unfortunately I can't get involved'. The fourth document is a letter dated 14 December 2017 sent to the appellants by the Minister for Local Government; Heritage; Culture and the Arts, the Honourable David Templeman.[16] The Minister's letter responded to a letter from the appellants concerning 'fence height and interactions with the City of Stirling'. In his letter the Minister wrote, 'As stated by the City, dividing fence disputes are a civil matter'. The fifth document is a document generated by the respondent and entitled 'Health and Compliance Service Request'.[17] It appears to be a pro forma document sent by the respondent to acknowledge receipt of a matter brought to the attention of the respondent. The document contains this statement:
If a service request is deemed to be a civil (private) matter (e.g. dividing fence, damage to private property or tenancy disputes), mediation services may assist you to reach a resolution. Meditation (sic) and legal advice is available from the Citizens Advice Bureau (08) 9221 5711 or Legal Aid WA (08) 9261 6222. The Magistrates Court (08) 9425 2222 should be contacted for information about civil legal proceedings.
[13] Combined Blue and Green Appeal Book 153.
[14] Combined Blue and Green Appeal Book 154 - 155
[15] Combined Blue and Green Appeal Book 158.
[16] Combined Blue and Green Appeal Book 156 - 157.
[17] Combined Blue and Green Appeal Book 159.
Ground 3 has no merit. Contrary to the appellants' contentions, the five documents described above upon which they rely were not 'highly relevant'. The documents were of no assistance to the primary judge. They are all communications with the appellants before the notice of 10 January 2018 was given and, in effect, they state no more than that dividing fence disputes are civil matters. That much is correct but as we have said nothing in the Dividing Fences Act prevents the respondent from giving notice under the Local Law and from commencing a prosecution in the event that the recipient of the notice does not comply with it. Not surprisingly given that the documents were all brought into existence before the notice was given, none of the documents are relevant in any way to the power of the respondent to give a notice to the appellants to remove a fence that does not comply with the Local Law. Finally, and more fundamentally, it is the responsibility of the courts to determine how relevant legislation is to be interpreted and applied in any given case and comments such as those made in the documents on which the appellants rely are of no assistance in that task.
Ground 4
By ground 4 the appellants contend the primary judge erred in law by failing to have regard to the submissions made by the appellants in opposition to the respondent's application that the appellants pay its costs of the applications for leave to appeal.
Ground 4 has no merit. The primary judge delivered her reasons for dismissing the applications for leave to appeal on 26 June 2020. The hearing was conducted by means of an audio link. At the hearing the appellants made submissions in opposition to the application for costs. In addition to making the point that in criminal appeals there is no rule that costs follow the event, the appellants argued that the respondent should not receive its costs because the respondent's counsel had not brought relevant authorities to the court's attention. This criticism was repeated in the appellants' submissions made in this appeal - the criticism was misguided and unjustified.
The primary judge delivered oral reasons for making an order that the appellants pay the respondents' costs.[18] Her Honour acknowledged that in criminal appeals costs do not always ordinarily follow the event as is the case in civil matters. Her Honour said that there is a general discretion that the court needs to exercise having regard to all the relevant circumstances including the public interest. Her Honour gave two reasons for ordering the appellants to pay the respondent's costs, first, that offences committed by the appellants were regulatory offences, and second, that her Honour had found four out of the five grounds of appeal had no merit. The primary judge's reasons in respect of costs reveal no error. Her Honour's reasons were consistent with the principles governing costs in appeals against the decisions of magistrates as expressed by this Court, see Wilson v McDonald.[19]
Ground 5
[18] Combined Blue and Green Appeal Book 41.
[19] Wilson v McDonald [2009] WASCA 39 (S) [3] ‑ [10], (Martin CJ with whom Beech AJA agreed).
By ground 5 the appellants contend the primary judge misrepresented what had occurred before the magistrate in relation to an application made by them for a determination of a question of law or procedure (referred to as the 'form 6 application'). The appellants contend that the primary judge had erroneously concluded that the magistrate had considered and rejected the form 6 application.
The appellants filed the form 6 Application on 27 September 2018 requesting the Court to determine a question of law or procedure, namely what they alleged was the respondent's lack of power to bring a prosecution under the Local Government Act.[20] The appellants contended the proceedings ought to be stayed pursuant to s 76 of the Criminal Procedure Act 2004 (WA) on the basis that they were unlawful and an abuse of process.
[20] Combined Blue and Green Appeal Book 147 ‑ 148. See also Criminal Procedure Act 2004 (WA) s 66.
At the commencement of the hearing on 12 February 2019 the respondent's counsel said that he understood that the court had received correspondence from the appellants in which they had said that they would not be attending the hearing. In response to this statement the magistrate said:[21]
Yes. They were - just for the record, they were each given a notice for attending on today's date, 12 February 9.30 am. It was handed to them personally by the court officer and since then we - although they've entered pleas of not guilty, since then they have sent quite considerable correspondence to the court by way of email. I directed last evening that an email be sent to them indicating that they did need to attend today, as the matter was listed for hearing today.
They have persisted, I'm told, that they will not be coming, that the matters should be dealt with on the papers, the court has no jurisdiction and they've maintained the same arguments which have all been dealt with by various people along the way.
[21] Combined Blue and Green Appeal Book 141.
The reference made by the magistrate to 'the matters should be dealt with on the papers, the court has no jurisdiction' was clearly a reference to the appellants' form 6 application. The magistrate proceeded with the hearing in the appellants' absence pursuant to s 55 of the Criminal Procedure Act. No further reference was made to the appellants' form 6 application.
Before the primary judge the appellants contended that the failure of the magistrate to deal with the form 6 application resulted in wrongful convictions and constituted a denial of procedural fairness. The primary judge's conclusions in respect of this contention were as follows:[22]
In my view, in continuing to hear the respondent's application and in referring to the 'references to the local law and their application' in her reasons for decision as the basis upon which she considered she had jurisdiction to deal with the City's application, her Honour implicitly dismissed the appellants' application.
Even if I am wrong in this regard and the learned magistrate failed to deal with the appellants' application, this does not, of itself, mean that the convictions should be set aside. Unless the failure to deal with the application (if this is what occurred) has resulted in a substantial miscarriage of justice, the appeal will be dismissed.
In my view, any failure to consider the application has not led to a substantial miscarriage of justice. I accept from the evidence before this court that the appellants had adequate notice of the hearing before the learned magistrate on 12 February 2019. For that reason, on their non‑attendance the learned magistrate could consider and deal with the application in their absence. Had her Honour considered the application, for the reasons set out above in respect of grounds 1 and 2, she would have dismissed the application. For this reason, I do not consider that any failure to consider the application has led to a substantial miscarriage of justice. (footnotes omitted)
[22] Primary reasons [66] ‑ [68].
Ground 5 has no merit. We agree with the conclusions expressed by the primary judge in the passage from the primary reasons set out above. It is implicit in the magistrate's oral reasons that she rejected the appellant's contentions advanced in their form 6 application to which she had referred at the commencement of the hearing. It is of no moment that the magistrate did not refer to the form 6 application when she gave her reasons. Moreover, as we have said, the respondent had power to give the notice to the appellants to remove the fence and the power to commence the prosecution, and the appellants' contentions to the contrary were based on a misunderstanding of the correct interpretation of cl 5.1(1) of the Local Law. The appellants suffered no miscarriage of justice.
Disposition
For the reasons we have given none of the grounds of appeal have merit. Leave to appeal should be refused and each appeal must be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
21 OCTOBER 2021
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