Kovacevic v Queanbeyan City Council

[2016] NSWCA 346

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kovacevic v Queanbeyan City Council [2016] NSWCA 346
Date of orders:	29 September 2016
Decision date:	13 December 2016
Before:	Beazley ACJ; Leeming JA; Payne JA
Decision:	Reasons published.
Catchwords:	APPEALS – appeal by prosecutor to Land and Environment Court from dismissal in Local Court of summary proceedings with respect to an environmental offence pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 42(2B)(b) – meaning of the definition of “prosecutor” as contained in Crimes (Appeal and Review) Act, s 3(1) – relevance of definition of “prosecutor” in Criminal Procedure Act 1986 (NSW), s 3(1) – whether Council the “prosecutor” for the purposes of bringing an appeal LAND & ENVIRONMENT – offence against s 125(1) of Environmental Planning and Assessment Act 1979 (NSW) – failure to cease using premises as a “transport depot” as defined in the Queanbeyan Local Environment Plan 1998 – meaning of the term “transport deport” – whether parking of vehicles used in connection with a business, industry or shop must involve the transport of something
Legislation Cited:	Civil Procedure Act 2005 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Fairfield Local Environment Plan 1994 Interpretation Act 1987 (NSW) Queanbeyan Local Environment Plan 1998 Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Fairfield City Council v Mangos [2004] NSWLEC 298 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 Matic v Mid Western Regional Council [2008] NSWLEC 113 Price v Ferris (1994) 34 NSWLR 704 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v McCullough [1982] Tas R 43 Roads and Traffic Authority (NSW) v Field (2005) 44 MVR 60; [2005] NSWSC 606 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
Category:	Principal judgment
Parties:	Mary Lucy Kovacevic (Applicant) Queanbeyan City Council (First Respondent) Land and Environment Court (Second Respondent)
Representation:	Counsel: C Stomo; J Masters (Applicant) T To (First Respondent) Submitting Appearance (Second Respondent)   Solicitors: Canberra Legal Group (Applicant) Herring & Associates (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	2016/158239
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 6 Citation: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Date of Decision: 25 September 2015 Before: Craig J File Number(s): 61062 of 2012

Headnote

[This headnote is not to be read as part of the judgment]

The applicant conducted from her premises driver training and licence assessment tests for persons seeking to drive heavy vehicles. Under the Queanbeyan Local Environment Plan 1998 (the LEP), use of the premises in question for the purpose of a “transport depot” required development consent. On 6 August 2009, Queanbeyan City Council (the Council) ordered that the applicant cease use of her premises as a “transport depot”, as no development consent had been granted in respect of that use.

On 2 November 2011, the applicant was issued with a Court Attendance Notice charging her with an offence contrary to the Environmental Planning and Assessment Act 1979 (NSW), s 125(1), of failing to cease use of certain premises in Queanbeyan as a “transport depot” in contravention of an order that she do so. On 11 September 2012, in the Queanbeyan Local Court, Bone LCM dismissed the charge against the applicant.

The Council appealed against the dismissal of the charge to the Land and Environment Court. On 25 September 2015, Craig J allowed the appeal, set aside the dismissal in the Local Court and remitted the matter to the Local Court for determination according to law.

On 23 May 2016, the applicant filed a summons seeking, by way of judicial review, to have the decision and orders of Craig J set aside. The principal issues before the Court of Appeal were as follows:

(i)   whether the primary judge erred in finding the Council had standing to bring the appeal as a “prosecutor” for the purposes of the Crimes (Appeal and Review) Act 2001 (NSW), s 42(2B)(b);

(ii)   whether the primary judge erred in his construction of the definition of “transport depot” in the LEP.

The Court held, dismissing the summons with costs:

In relation to (i):

(1)   The Crimes (Appeal and Review) Act 2001 (NSW), s 3(1), defines a “prosecutor”, in relation to proceedings from which an appeal or application for leave to appeal is made, as meaning the person “responsible for the conduct of the prosecution in those proceedings”.

(2)   The definitional phrase “person responsible for the conduct of the prosecution” involves a continuum of action and is concerned with the conduct of proceedings from beginning to end. [57]

(3)   It would be an unsatisfactory, if not absurd and unintended, result of the legislation to construe the definition of “prosecutor” so as to deprive an entity such as a council of the right to appeal from an order made by a Local Court because the individual who instituted the proceeding was not available to bring an appeal. [52]-[56]

Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321; [1974] HCA 5; Roads and Traffic Authority (NSW) v Field (2005) 44 MVR 60; [2005] NSWSC 606, considered

In relation to (ii):

(4)   The definition of “transport depot” in the Queanbeyan Local Environment Plan 1998 should not be read so as to require that the parking or storage of vehicles in connection with a business, industry or shop involve the transport of something. [85]-[86], [88]-[92]

(5)   Having regard to context and purpose, the definition plainly contemplates a building or place used for the parking or storage of vehicles used in connection with a passenger transport undertaking; or in connection with an industry; or in connection with a shop and includes a bus depot or a road transport terminal. [85]-[86]

Judgment

1. THE COURT: On 11 September 2012, Bone LCM dismissed a charge against the applicant, Mary Lucy Kovacevic, of an offence contrary to the Environmental Planning and Assessment Act 1979 (NSW), s 125(1) that she had failed to cease use of certain premises in Queanbeyan as a transport depot, in contravention of an order that she do so.

2. The prosecution against the applicant had been commenced by way of Court Attendance Notice (CAN) issued on 2 November 2011. The prosecution case against the applicant was dismissed.

3. Queanbeyan City Council (the Council) appealed against the dismissal of the charge to the Land and Environment Court. On 25 September 2015, Craig J allowed the Council’s appeal with costs, set aside the dismissal of the prosecution against the applicant, and remitted the matter to the Local Court at Queanbeyan for determination according to law.

4. The applicant commenced two distinct proceedings in this Court. By summons filed 11 March 2016, the applicant sought leave to appeal against the orders of Craig J. Additionally, by summons filed 23 May 2016, the applicant sought, by way of judicial review, relief setting aside the decision and orders of Craig J. However, at the commencement of the hearing in this Court on 26 September 2016, the applicant only sought to proceed on the summons for judicial review filed 23 May 2016. The Court dismissed the summons filed 11 March 2016 seeking leave to appeal, and ordered that the applicant pay the costs, if any, of the Council thrown away by the filing of that summons.

5. On 29 September 2016, the Court made orders dismissing the summons filed 23 May 2016 and ordering the applicant to pay the Council’s costs of the summons. The Court’s reasons for making those orders are as follows.

Relevant background

6. The applicant conducts from the premises in question driver training and licence assessment tests for persons seeking to drive heavy vehicles. Heavy vehicles, including prime movers, trucks and trailers, would frequently park on or immediately adjacent to the grounds of the premises.

7. The premises were zoned “3(a) Business A Zone” under the Queanbeyan Local Environment Plan 1998 (the LEP). Use of such land for the purpose of a “transport depot” required the grant of development consent: LEP, cl 27. No such consent had been obtained for the premises. The objectives of the Zone were identified in cl 27(1):

“(a)   to recognise the Queanbeyan City central business district as the main commercial/retail centre of the city, and

(b)   to recognise the Jerrabomberra shopping centre as a future important commercial/retail centre, and

(c)   to provide for a wide range of retail, commercial and tourist uses as well as residential development opportunities in the zone, and

(d)   to encourage alterations, additions or redevelopment within the central business district which acknowledges the scale, form and character of existing development, and

(e)   to encourage alterations, additions or redevelopment which provides sufficient on-site carparking and loading/unloading facilities and meets the Council’s urban design requirements as outlined in a development control plan.”

8. On 6 August 2009, the Council ordered, pursuant to the Environmental Planning and Assessment Act, s 121B(1) that the applicant cease use of the premises as a transport depot as defined in the LEP. The order nominated a period for compliance of 30 days.

9. Having purportedly failed to comply with the s 121B order, the applicant was issued with a CAN on 2 November 2011, alleging an offence contrary to the Environmental Planning and Assessment Act, s 125(1). Under the heading “Details of Prosecutor”, the CAN contained the following information:

“Prosecutor:   PETER REYNDERS

Department / Organisation:   Queanbeyan City Council – 100936

…

Telephone:   State Debt Recovery Office 1300 138 118”

10. Mr Reynders was, at the date of issue of the CAN, an employee of the first respondent, the Council. It was an agreed fact on the appeal that Mr Reynders retired on 14 May 2012 prior to the hearing of the charge in the Local Court.

Relevant legislation

11. Pursuant to the Environmental Planning and Assessment Act, s 121B(1)(a), an order may be given to a person by a council to do or to refrain from doing a thing specified in the table contained in s 121B(1). The table provides, relevantly, that an order may be made that the owner or person by whom premises are being used for the purpose specified in the order, cease using the premises for the purpose specified in the order where that purpose is prohibited or is a purpose that would require development consent.

12. Pursuant to cl 27 of the LEP, development for the purposes of a “transport depot” requires the grant of development consent. Schedule 1 of the LEP defines “transport depot” as follows:

“transport depot means a building or place used for the parking or storage of motor powered or motor drawn vehicles used in connection with a passenger transport undertaking, business, industry or shop and includes a bus depot or a road transport terminal.”

13. The Environmental Planning and Assessment Act, s 125(1) provides:

“Where any matter or thing is by or under this Act, other than by or under the regulations, directed or forbidden to be done, or where the Minister, the Secretary, a council or any other person is authorised by or under this Act, other than by or under the regulations, to direct any matter or thing to be done, or to forbid any matter or thing to be done, and that matter or thing if so directed to be done remains undone, or if so forbidden to be done is done, a person offending against that direction or prohibition shall be guilty of an offence against this Act.”

14. The Criminal Procedure Act 1986 (NSW), Ch 4 is concerned with proceedings for summary offences. Relevantly, s 172(1) provides:

“Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.”

15. Section 173 provides that:

“If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.”

16. Section 174 makes provision for the commencement of proceedings other than by a police officer or public officer. As is explained below, s 174 is not relevant to these proceedings.

17. Section 3(1) of the Criminal Procedure Act contains the following relevant definitions:

“prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor.

public officer means, relevantly, any of the following persons, if acting in an official capacity:

…

(c)   an employee of a council within the meaning of the Local Government Act 1993 …”

18. The Council appealed to the Land and Environment Court pursuant to the Crimes (Appeal and Review) Act 2001 (NSW). Section 42(2B) of that Act provides:

“(2B)   The prosecutor (including the Director of Public Prosecutions or the Environment Protection Authority) may appeal to the Land and Environment Court against:

(a)   an order made by the Local Court that stays any summary proceedings for the prosecution of an environmental offence, or

(b)   an order made by the Local Court dismissing a matter the subject of any summary proceedings with respect to an environmental offence, or

(c)   an order for costs made by the Local Court against the prosecutor in any summary proceedings with respect to an environmental offence …”

19. Section 3(1) of the Crimes (Appeal and Review) Act defines prosecutor as follows:

“prosecutor, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings.”

20. The Local Government Act 1993 (NSW), s 687 provides:

“687   Appearance in Local Court

In proceedings in the Local Court, the general manager or any other employee of the council appointed in writing by the general manager may:

(a)   represent the council in all respects as though the general manager or other employee were the party concerned, and

(b)   institute and carry on any proceedings which the council is authorised to institute and carry on under this Act.”

Grounds upon which judicial review sought

21. The applicant’s summons seeking judicial review advanced four grounds of review, formulated as follows:

“1   His Honour erred in holding that the party responsible for the prosecution in the Local Court was the Queanbeyan City Council.

2   His Honour erred in holding that the appellant in the proceedings in the Land and Environment Court (Queanbeyan City Council) had standing to bring the appeal from the Local Court.

3   His Honour should have found that the proper party who was responsible for the conduct of the prosecution and to bring the appeal was Mr Reynder.

4   His Honour erred in the definition of Transport Depot in the Queanbeyan City Council.”

22. Grounds 1, 2 and 3 were identified as jurisdictional grounds. Ground 4 was advanced as error of law on the face of the record.

23. During the course of oral argument on 26 September 2016, the Court granted the applicant leave to amend the summons filed 23 May 2016 to add a ground of review that the primary judge erred in the exercise of his discretion in awarding costs in favour of the Council.

The jurisdictional question: did the Council have standing to bring the appeal?

Reasons of the primary judge

24. The primary judge, at [23]-[24], observed that proceedings by way of a prosecution could be commenced either by a police officer or a public officer pursuant to the Criminal Procedure Act. His Honour, at [27], noted that there was no challenge to the validity of the CAN and that it was to be assumed that it was validly issued pursuant to s 173 of the Criminal Procedure Act: see Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [21].

25. His Honour, at [27], considered that the identification, in the CAN, of the Council against the notation “Department/organisation” appearing immediately below Mr Reynders’ name not only supported the view that the CAN was issued under s 173 by a “public officer”, but was also evidence as to the “person” responsible for the conduct of the prosecution. In his Honour’s view, consistent with the definition of “prosecutor” in the Criminal Procedure Act, s 3, the CAN identified Mr Reynders as the person instituting the prosecution. His Honour considered that the reference to the Council on the CAN identified it as the person by whom Mr Reynders was employed, thereby demonstrating his right to issue the CAN under s 173 and also identifying the Council as the person “responsible for the conduct of the prosecution”.

26. His Honour held, at [32], that he was satisfied, on the proper construction of the legislative provisions to which he had referred, together with the content of the CAN and the findings in the judgment from which the appeal was brought, that the Council was a “prosecutor” entitled to bring the appeal. His Honour further stated that his conclusion was consistent with the findings made in similar circumstances in Roads and Traffic Authority (NSW) v Field (2005) 44 MVR 60; [2005] NSWSC 606.

27. The reasoning that led to that conclusion is to be found at [28]-[31]. In those paragraphs of his reasons, his Honour set out the reasons of the Magistrate in [2]-[4] of the Local Court judgment.

28. His Honour, at [28], observed that the “tenor of the … judgment” in the Local Court was that it was the Council which, for all practical purposes, maintained the prosecution. In that regard, the Magistrate had stated in his judgment at [2] that:

“Evidence was given by the (now retired) Peter Reynders … of his own observations and a significant amount of correspondence between [the applicant] and Queanbeyan City Council.”

29. At [29], his Honour noted that the Magistrate, at [3] of the Local Court judgment, had referred to the documents tendered “as part of the prosecution file” as comprising the file of the Council. His Honour, at [30], set out [4] of the Magistrate’s reasons which contained details of the correspondence from the Council to the applicant.

30. His Honour, at [31], explained why the legislation had identified “the person responsible for the prosecution” as the “prosecutor” for the purposes of the Criminal (Appeal and Review) Act as follows:

“The reference at [2] in the [Local Court magistrate’s] judgment to the ‘now retired’ Mr Reynders, identifies a circumstance that, to my mind, the definition of ‘prosecutor’ in both the Criminal Procedure Act and the Appeal Act, seeks to address. Retirement from office, medical indisposition, frailty of mind or death are but some of the reasons why the person instituting proceedings may be prevented from prosecuting them to conclusion or from exercising a right of appeal otherwise available from the determination made in the Local Court. Where proceedings prosecuting an offence are regularly commenced under s 173 of the Criminal Procedure Act, that is, commenced by reason of employment or office in a statutory entity or public body nominated in the definition of ‘public officer’ in s 3 of the Criminal Procedure Act, it would surely lead to an unintended result if the continued prosecution of that offence or the exercise of the right of appeal was dependent upon the personal circumstances of the nominated officer, including his or her continued employment in the entity which founded the entitlement to institute the prosecution. Extending the definition of ‘prosecutor’ to include reference to the ‘person’ responsible for the conduct of the prosecution is intended, so it seems to me, to avoid such a result.”

31. His Honour then concluded, at [32], as has been stated, that the Council was the prosecutor entitled to bring the appeal in the Land and Environment Court.

32. His Honour also had regard to evidence tendered by the Council on the jurisdictional question as to whether the Council was the prosecutor. That evidence included the fact that the applicant had treated the prosecution as having been brought by the Council, having regard to her written submissions in the Local Court which were entitled “Kovacevic ats Queanbeyan City Council”. His Honour considered, at [51], that the evidence established “beyond a shadow of a doubt” that it was the Council who was responsible for the conduct of the prosecution brought against the applicant.

33. His Honour, at [53]-[54], rejected the submission that the decision of this Court in Price v Ferris (1994) 34 NSWLR 704 was relevant to the determination of the jurisdictional question. That case was concerned with the meaning of certain provisions of the Director of Public Prosecutions Act 1986 (NSW) and in particular s 9. His Honour stated that no statement of principle in that case relevant to the determination of the issue before him had been identified by the applicant. As his Honour observed, there were no provisions in the Criminal Procedure Act or in the Crimes (Appeal and Review) Act comparable to the provisions of the Director of Public Prosecutions Act, s 9.

Applicant’s submissions

34. The applicant contended that the Council was not the prosecutor within the meaning of s 3(1) of the Crimes (Appeal and Review) Act as it was not “the person responsible for the conduct of the prosecution in those proceedings” and therefore had no entitlement to bring the appeal.

35. The applicant’s contention was premised upon the CAN having been issued by Mr Reynders, who was an employee of Council and a public officer within the meaning of s 173 of the Criminal Procedure Act. As such, he was the person authorised to undertake the prosecution. The applicant accepted that those proceedings had been properly commenced.

36. The applicant submitted that as neither the Director of Public Prosecutions nor the Environmental Protection Authority had appealed from the decision of the magistrate, the only person entitled to appeal was “the prosecutor” pursuant to the Crimes (Appeal and Review) Act, s 42(2B). The “prosecutor” was defined in s 3 of that Act as the person “responsible for the conduct of the prosecution”.

37. The applicant submitted that in finding that the Council was “a prosecutor” entitled to bring the appeal, his Honour had wrongly acted on a view, relying upon Roads and Traffic Authority (NSW) v Field, that the Council was “the person responsible for the prosecution”. The applicant submitted that his Honour’s approach failed to give any work for the word “conduct” to do in the definition of “prosecutor” in the Crimes (Appeal and Review) Act, and focussed rather on the person “responsible for the prosecution”. The applicant submitted that to the extent that Field “decides a unification between the Prosecutor and his/her employer the decision is wrong”.

38. The applicant also challenged the primary judge’s rejection of her submission that the decision of this Court in Price v Ferris spoke against the Council’s entitlement to appeal. According to the applicant, his Honour “took the view that the person responsible for the prosecution was Peter Reynders AND the Council” (applicant’s emphasis). The applicant contended that his Honour thereby misdirected himself as there can only be one prosecutor: see Price v Ferris. The applicant further submitted that Ferris, properly understood, is authority that it is the “prosecuting entity” that has the right of appeal and that the question in issue here, namely, what is meant by the phrase “responsibility for the conduct” of the prosecution, was not in issue in that case.

39. The applicant submitted that the effect of s 3(1) of the Criminal Procedure Act was that the “prosecutor” was the person who actually has responsibility for the “conduct of a prosecution”. According to the applicant, the “conduct” referred to in the definition is the conduct of the actual prosecution before the Local Court by the person instituting the proceedings.

40. The applicant submitted that some guidance may be gained from the Criminal Procedure Act, s 37 which provides:

“37   Conduct of case

(1)   The prosecutor’s case may be conducted by the prosecutor or by the prosecutor’s Australian legal practitioner or any other person permitted to appear for the prosecutor (whether under this or any other Act).

(2)   The accused person’s case may be conducted by the accused person or by the accused person’s Australian legal practitioner or any other person permitted to appear for the accused person (whether under this or any other Act).”

41. The applicant submitted that reference to “the prosecutor” in s 37(1) is consistent with the interpretation of “prosecutor” in s 3 as being the person with the actual conduct of the case, and inconsistent with the broader approach of the “body responsible” for the prosecution, as was accepted by Kirby J in Field. The applicant further submitted that s 37 refers to the prosecutor and does not anticipate that there would be more than one prosecutor.

42. The applicant also relied upon the reference to the phrase “course of conduct” in R v McCullough [1982] Tas R 43 cited with approval in Livermore v R (2006) 67 NSWLR 659; [2006] NSWCCA 334 at [24] as follows:

“[It is] quite impermissible [for a prosecutor] to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion.”

43. The applicant submitted that the reference to “course of conduct” was a reference to “conduct during the course of the proceedings” and was consistent with s 37 which permits the conduct of the prosecution to be carried out by a legal representative.

44. The applicant also disputed that any inference of responsibility for the conduct of the prosecution on the part of the Council could arise from the reference to it on the CAN (see at [9] above) and contended that responsibility remained with Mr Reynders as the person responsible for conducting the prosecution.

Council’s submissions

45. The Council pointed to the distinction in the legislation between the person or entity entitled to commence a prosecution on the one hand and the person or entity entitled to bring an appeal. In the former case, the prosecutor was, relevantly, the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution. In the latter case, that is, in the case of an appeal, the only person or entity entitled to bring an appeal is the prosecutor defined to mean “the person responsible for the conduct of the prosecution in the proceedings from which the appeal is brought”: Crimes (Appeal and Review) Act, s 3; s 42(2B).

46. On the finding of the primary judge, the prosecutor was the Council. The Council submitted that that finding was correct. Mr Reynders was an employee of the Council and thereby subject to its directions. In any event, Mr Reynders did not conduct the hearing, having already retired by that time. It had not been suggested by the applicant that some other person or entity was responsible for the conduct of the prosecution.

47. The Council submitted that the primary judge correctly found that Mr Reynders was the person who had instituted the prosecution and that the Council was responsible for the conduct of the prosecution. The Council submitted that the primary judge’s finding that it was responsible for the conduct of the prosecution was sufficient for the Council to be a “prosecutor” for the purposes of the Crimes (Appeal and Review) Act.

48. The Council also pointed out that the primary judge had, at [31], identified “cogent reasons” in favour of the construction of “person responsible for conduct of a prosecution” as encompassing the Council.

49. The Council disputed the relevance of Price v Ferris, and contended that that decision said nothing of relevance to the case at hand or to the construction of the term “prosecutor” in the Crimes (Appeal and Review) Act. The Council submitted that the power to “take-over” proceedings conferred on the Director of Public Prosecutions pursuant to s 9 of the Director of Public Prosecutions Act was peculiar to that office. The Council submitted that the primary judge correctly distinguished the decision.

Disposition

50. The question whether the Council was “the prosecutor” within the meaning of, and for the purposes, of the Crimes (Appeal and Review) Act, s 42(2B) raises a question of statutory construction to be determined in the context of certain findings of the primary judge.

51. The established principles of statutory construction require that the process of construction commence with the text of the provision in question, the language used being the surest guide to the legislative intention: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47]. Consideration is also to be given to the context in which the provision appears in order to ascertain the meaning of the provision. The context, relevantly, “includes the general purpose and policy of the provision”: Commissioner forRailways (NSW) v Agalianos (1955) 92 CLR 390; [1955] HCA 27 at 397 per Dixon CJ; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] per McHugh, Gummow, Kirby and Hayne JJ.

52. As noted above, the prosecution in the Local Court of a summary offence is governed by the Criminal Procedure Act, Ch 4. Chapter 4, Pt 2, deals with “Trial procedures in lower courts”. Division 1, encompassing ss 172-181, deals with the commencement of proceedings. Sections 172 and 173 have been set out above. As has been discussed, the primary judge held, and it is not subject to challenge, that the proceedings against the applicant were instituted by Mr Reynders pursuant to s 173. Section 175(3) provides that the CAN must contain the name of the prosecutor.

53. The only basis upon which Mr Reynders was authorised to commence proceedings was as a public officer within the meaning of para (c) of the definition of that term in s 3(1). This was not the subject of challenge. As a matter of that definition, an employee of a council, if acting in an official capacity, is a public officer within the meaning of s 173. An employee does not engage in conduct on his or her own behalf but on behalf of the employer, in this case, the Council.

54. The Local Government Act, s 687 provides that the Council may be represented in the Local Court by an employee:

“687   Appearance in Local Court

In proceedings in the Local Court, the general manager or any other employee of the council appointed in writing by the general manager may:

…

(b)   institute and carry on any proceedings which the council is authorised to institute and carry on under this Act.”

55. There was no evidence that Mr Reynders had been appointed in writing under this section. Nonetheless, the provision serves to emphasise that it is the Council that has responsibility for the conduct of the prosecution.

56. At the point of an appeal, the concern is with what happened in the proceedings, that is, with the order that has been made. As the appeal is a creature of statute, the identification of the person or entity entitled to bring an appeal is necessary. There is no reference in the definition of “prosecutor” in the Crimes (Appeal and Review) Act to the person who instituted proceedings. This is understandable. By the time an appeal is brought, there may have been a change of the personnel who conducted the proceedings for any of the reasons to which the primary judge referred at [31]. It would be an unsatisfactory, if not absurd and unintended, result of the legislation if an entity such as a Council was deprived of the right to appeal from an order made by a Local Court because the person instituting the proceeding was not available to bring an appeal.

57. The concern in the Crimes (Appeal and Review) Act is only with the person responsible for the conduct of the proceedings. Further, the plain meaning of the phrase indicates that it is the person or entity that has the overall charge or control of the prosecution that is the prosecutor. The definitional phrase “person responsible for the conduct of the prosecution” involves a continuum of action. It is not only concerned with the institution of proceedings, but with their conduct from beginning to end.

58. The context in which the words appear supports this conclusion. That context includes the place of the definition within the framework of an appeal from a prosecution conducted in a lower court. In contrast to the meaning of “prosecutor” in the Criminal Procedure Act, a “prosecutor” within the meaning of the Crimes (Appeal and Review) Act is the “person responsible for the conduct of the prosecution in those proceedings”.

59. As Barwick CJ stated in the context of workers compensation legislation, legislation should not be construed to bring about an unjust or capricious result unless the language of the provision is intractable: Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321 at 331. The language of the definitional clause is not only not intractable, it bears the plain meaning referred to above.

60. The applicant was critical of the primary judge’s reliance on the reasoning of Kirby J in RTA v Field. In that case, Mr Morgan, a prosecutor for the Roads and Traffic Authority (RTA), issued two CANs against Mr Field requiring his attendance at the Downing Centre Local Court. During the course of the hearing in the Local Court, argument focussed on the accuracy of the camera alleged to have captured Mr Field speeding. Maloney LCM ultimately dismissed the summons, having determined that the camera in question could not be presumed to be accurate and reliable on the relevant dates. The RTA appealed to the Supreme Court pursuant to s 56 of the then Crimes (Local Courts Appeal and Review) Act 2001 (NSW). Pursuant to s 56(1)(c), “the prosecutor” could appeal to the Supreme Court as of right from an order made by the Local Court dismissing a matter the subject of summary proceedings.

61. An issue arose in Field as to the plaintiff in whose name the summons for judicial review should have been issued. The summons originally included Mr Morgan’s name, but that was crossed out and the RTA substituted when the summons were filed: Field at [20]. Kirby J’s reasoning in this regard was brief, and can be set out in full:

“[21]   Under the Criminal Procedure Act 1986, which has application to the Local Court, the term ‘prosecutor’ is defined in s3 in these terms:

‘prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) a barrister or solicitor representing the prosecutor.’

[22]   Counsel draws attention to the distinction made in this definition between, on the one hand, the person who institutes the prosecution and the person responsible for the conduct of the prosecution. Mr Michael Morgan, on behalf of the RTA, instituted the prosecution, but the RTA was the body responsible for the prosecution.

[23]   The Crimes (Local Courts Appeal and Review) Act 2001 also contains a definition of ‘prosecutor’ which is in these terms (s3):

‘prosecutor, in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings.’

[24]   Again, on the plaintiff’s argument, the RTA is the person responsible for the conduct of the prosecution and as such, the prosecutor. It is therefore the appropriate body to issue the summons to this Court and prosecute this appeal.

[25]   Again, I accept the plaintiff’s argument. The prosecutor, in truth, is the RTA, as the party responsible for the conduct of the prosecution.”

62. It must be acknowledged that Kirby J did not engage in any extensive analysis of the meaning of the phrase “party responsible for the conduct of the prosecution”. Nonetheless, RTA v Field clearly provides support for his Honour’s conclusion.

63. Nor do we consider that his Honour erred in rejecting the applicant’s submission in relation to the decision in Price v Ferris. As his Honour observed, that decision was concerned with the construction of s 9 of the Director of Public Prosecutions Act and whether, in accordance with that provision, once the Director of Public Prosecutions had “taken over a prosecution” there was any continuing function for the private informant, in that case an inspector of police, in the prosecution, including in respect of an appeal: per Kirby P at 709, Meagher JA agreeing. As the primary judge stated at [55], there are no similar provisions in the legislation under consideration in this case.

64. There is another aspect of the applicant’s submissions arising out of her challenge to the primary judge’s reasoning on this point that needs to be considered. The applicant submitted that Price v Ferris was authority for the proposition that there can only be “one prosecutor”, but that his Honour had misdirected himself in taking the view that the person responsible for the prosecution was both Mr Reynders and the Council. However, as the Council pointed out, that was not his Honour’s finding. Rather, his Honour found, at [27], that Mr Reynders had instituted the proceedings as a public officer of the Council and that the Council had responsibility for the conduct of the proceedings.

65. Further, Kirby P in Price v Ferris did not conclude that, as a matter of principle, there could only ever be one prosecutor. Rather, his Honour observed, at 708, that the purpose and scheme of the Director of Public Prosecutions Act was for functions of the private prosecutor to be taken over by the DPP and thereafter deemed to be “the prosecutor” that is, the only prosecutor. It could be feasible, depending upon the terms of the legislation, for there to be more than prosecutor in a given case. However, the prosecutors would have to be in the same interest and in effect act concurrently. That is not the case here. His Honour was correct in finding that the entity responsible for the conduct of the prosecution was the Council.

66. Finally, contrary to the applicant’s submission, the Criminal Procedure Act, s 37 does not support her contention. That section is concerned with the prosecution of the case. In recognition that the actual case as presented in court must be conducted by someone, that section specifies the persons who may do so. If the applicant’s submission that the phrase “person responsible for the prosecution” was confined to the person who had the actual conduct of the case in court were correct, s 37 would be otiose.

67. The reference in s 37 to the person who may prosecute the case also answers the matter raised by the applicant in relation to the duties of the prosecutor. The applicant’s reliance on the statement in McCullough cited in Livermore does not assist. The reference in McCullough to “course of conduct” was in a different context, namely, in respect of the duties of a prosecutor, that is, the individual, in carrying out the actual prosecution. That is different from seeking to identify the person or entity responsible for the prosecution.

The question of construction: meaning of transport depot

68. Before his Honour, the applicant contended for a conjunctive construction of the phrase “used in connection with a passenger transport undertaking, business or shop” within the definition of “transport depot”. On this approach to the construction of the definition clause, the adjectival phrase “passenger transport” modified each of “undertaking”, “business”, “industry” and “shop”. Thus, on this approach, the definition was to be read as meaning:

“… a passenger transport undertaking, a passenger transport business, a passenger transport industry or a passenger transport shop.”

69. The Council submitted to the primary judge that the phrase was to be read disjunctively such that the adjectival phrase “passenger transport” was to be read as modifying only “undertaking”. “Business”, “industry” and “shop” were to be read as referring to a business of any kind, an industry of any kind and a shop of any kind. On that construction, there would be a contravention of the LEP if a building or place was used for the parking or storage of vehicles that were used in connection with one or other of the activities specified in the definition. Thus it was not necessary, in the case of vehicles being parked in connection with a “business”, “industry” or “shop” for that business, industry or shop to be a “passenger transport business”, a “passenger transport industry” or “transport passenger shop”.

70. His Honour held, at [116]ff, that the construction advanced by the Council was the proper construction of the definitional clause. His Honour accepted that, as a matter of ordinary language, it may make sense to speak of a “passenger transport business”, the word “business” not bearing any special meaning under the LEP. However, his Honour expressed the view that it would be inconsistent with the ordinary use of language to speak of a “passenger transport industry” or “passenger transport shop”, particularly having regard to the definition of “industry” in the LEP which was as follows:

“(a)   any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962, or

(b)   the breaking up or dismantling of any goods or any article for trade or sale or gain or as development ancillary to carrying on any business.”

71. In this regard, his Honour observed that the inability to juxtapose “passenger transport” in such a way “as to give rational meaning to all three development activities” rendered the applicant’s preferred conjunctive interpretation improbable.

Submissions of the parties

72. In oral argument on the appeal, the applicant advanced a different argument from that advanced before the primary judge. Rather than seeking to read the phrase “vehicles used in connection with a passenger transport undertaking, business, industry or shop and includes a bus depot or a road transport terminal” conjunctively, she submitted that the expression “transport depot” should not be read as merely requiring the parking of motor vehicles at premises, but that that parking “has to be in relation to having vehicles … there for the purposes of doing some transporting”. The applicant reiterated that “[s]ince the adjective transport is used to describe depot it must be associated with the storage of vehicles for the purposes of transport”. According to the applicant:

“The proper definition of a transport depot requires the parking of vehicles … but they’ve got to be associated with the transport of something. In this case, there was nothing that was transported. Otherwise, any vehicle parked on the premises would fulfil that description, because every vehicle can transport people.”

73. The applicant sought to illustrate this construction of “transport depot” with the proposition that “[i]f a butcher shop (or business) stores vehicles for transport of goods, then it is a transport depot”. In the case of a “shop”, a pizza home delivery shop which had vehicles parked or stored on its premises for the purposes of undertaking home delivery would fall within the meaning of “transport depot”, the essential requirement being that the vehicles be used for transport. The applicant did not advance an argument that the definition of “transport depot” was confined to passenger transport. The essential requirement was that the vehicles that were parked or stored were used for transport.

74. The applicant submitted that the inclusion of the terms “passenger transport undertaking” at the commencement of the phrase “business, industry or shop” and the phrase “bus depot” at the end of those words, would not have been necessary if the definition was intended to simply refer to the storage of vehicles associated with a business. She submitted that the “drafter had something else in mind than simply a business” and continued:

“That something was transport of goods and because ‘passengers’ are not goods the drafter required the definition to extend to transportation of people … as one of the ‘activities’ to which the vehicles were used”.

75. The Council submitted that an error of construction would be an error within jurisdiction so that the applicant had not made out an entitlement to judicial review. The Council also complained that the construction now advanced by the respondent was different from that advanced before the primary judge. The Council rejected the applicant’s suggestion that there had been “almost an implicit acceptance” by the primary judge of the applicant’s preferred construction.

76. The Council otherwise submitted that the primary judge did not err in his construction of the term “transport depot”, and relied on its submissions to the Court below.

77. In its submissions in the Court below, the Council had submitted that:

“The only zones in which development for the purpose of a transport depot is permissible, with consent, are the three Business zones and the two Industrial zones”

and that

“… the policy and the purpose of the QLEP is to permit development for the purpose of a transport depot in Business and Industrial zoned land.”

78. On this basis, the Council submitted that:

“The context, and the policy and purpose of the QLEP reveals no narrow approach was intended to be taken in defining the range of commercial uses permitted in the Business zone. This informs the way the defined phrase, ‘transport depot’, is to be interpreted.”

79. The Council had also submitted to his Honour that “transport depot” should not be construed so as to confine the uses stated in the definition to any particular class or genus. The Council emphasised the consequences of the conjunctive construction that had been advanced by the respondent before the primary judge, in that it makes little sense to speak of a “passenger transport shop” or a “passenger transport industry”, particularly when, having regard to the definition of “industry”, such a construction would include “a manufacture of passenger transport”, a nonsensical arrangement. The Council also appears to have raised an argument of surplusage as pointing against the conjunctive construction, in that it was submitted that “passenger transport shop” and “passenger transport industry” would fall within the phrase “passenger transport undertaking”.

80. In relation to the inclusive reference to a “bus depot” in the definition of “transport depot”, the Council referred to the observation in Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [42] that:

“There is no rule of construction which requires inclusive words to be read as exclusive of any elements which otherwise fall within the meaning of the word or expression being defined.” (citations omitted)

81. In relation to the inclusive reference to a “road transport terminal”, the Council submitted that this provided a textual indicator that not all “transport depot” uses are concerned with passenger transport. The Council submitted that the definition of “road transport terminal” in the LEP makes it clear that development for the purposes of such a terminal is development for a purpose concerned with the transport of goods and not passengers:

“Schedule 1 Dictionary

…

road transport terminal means a building or place used primarily for the bulk handling of goods for transport by road and includes related facilities for the loading and unloading of vehicles used to transport those goods and for the parking, servicing and repair of those vehicles”

82. The Council rejected the applicant’s suggestion that, on the disjunctive construction, any vehicle parked on the premises of a business, industry or shop would make that business, industry or shop a “transport depot”. The Council submitted that that view:

“… ignores the well-established approach to characterising an ancillary use as serving the same purpose of development as the dominant use it serves. The parking of a single delivery van would not alter the purpose of the development – a shop.”

Disposition

83. As the primary judge observed, at [105], the LEP is to be interpreted conformably with general principles of statutory interpretation: see Interpretation Act 1987 (NSW), s 3(1); Cranbrook School v Woollahra Municipal Council at [36]. His Honour, at [106], noted that in Matic v Mid Western Regional Council [2008] NSWLEC 113, Jagot J had observed, at [9], that the principles of statutory construction are of particular significance for the construction of environment planning instruments. Her Honour continued:

“The planning purpose of an environmental planning instrument is to be determined by reference to the language of the instrument considered in context.”

84. The relevant principles of statutory construction have been discussed above at [51].

85. The construction given to the definitional clause “transport depot” by the primary judge is, in our opinion, correct, for the reasons he gave. When regard is had to the text of the provision and, in particular, to its grammatical construction, including the placement of the commas and the use of the disjunctive “or”, the text of the clause plainly means:

“A transport depot is a building or place used for the parking or storage of vehicles used in connection with a passenger transport undertaking; or in connection with an industry or in connection with a shop and includes a bus depot or a road transport terminal.”

86. As the primary judge found, this construction is consistent with the objectives of the LEP for both the business and industrial zones. The Council would be concerned with the orderly use of any business activity carried on within those zones, including in relation to the use and parking of vehicles. Further, as the Council explained, the anomaly suggested by the applicant, in relation to vehicles parked in a building used in connection with, for example, a shop, does not arise when regard is had to the principle that an ancillary use will be characterised as serving the same purpose as the dominant purpose of the development to which it is ancillary: see, for example, Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; (2007) 151 LGERA 400 at [43] per Preston CJ; Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107; (2011) 180 LGERA 343 at [49]ff per Beazley JA; Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161 per Glass JA.

87. Our view in this respect is reinforced when regard is had to the cognate definition of “transport depot” in another local environment plan.

88. Fairfield City Council v Mangos [2004] NSWLEC 298 involved a council application for declaratory and injunctive relief in relation to the use of certain premises allegedly being used as a “transport depot”. The Fairfield Local Environment Plan 1994 contained the following definition:

“Transport depot means a building or place used for the servicing, garaging, parking or repair of motor powered or any motor drawn vehicle used in connection with passenger or goods transport, business or industry, but does not include a building or place elsewhere defined in this plan.”

89. The Council in Mangos argued that this definition should be construed:

“… so that it applies in respect of a vehicle ‘used in connection with (a) passenger or goods transport; (b) business; or (c) industry’ where (a), (b) and (c) operate disjunctively” (Mangos at [31])

90. The respondent in Mangos contended that “the relevant vehicle must be used in connection with the business or industry of passenger or goods transport”, an argument not dissimilar to that advanced by the applicant before this Court: Mangos at [34].

91. Bignold J was of the view, at [37], that the punctuation employed in the Fairfield Local Environment Plan definition, “especially in its context where the disjunctive ‘or’ appears between the words ‘business’ and ‘industry’”, tended in favour of reading the definition in terms of “distinct and disjunctive elements or limbs”. His Honour considered, at [40]-[41], whether the qualifying clause constituted a compound or composite expression so that the words “passenger or goods” operated adjectively to govern each of the words “transport”, “business” or “industry”, but rejected that construction principally on the basis that the word “transport” could not reasonably be regarded as being in apposition with the words “business” and “industry”. Nor could his Honour discern any relevant “genus created by the words ‘passenger or goods transport’ such as to require a limited meaning to be given to the general words ‘business’ and industry’” in accordance with the ejusdem generis principle: at [42].

92. Having rejected those possible constructions, Bignold J, at [41], concluded “that the words ‘passenger or goods’ are not intended to operate adjectivally in a manner that would govern each of the words ‘transport’, ‘business’ and ‘industry’”.

The discretion as to costs

93. It was uncontroversial as between the parties that should the applicant succeed in establishing want of jurisdiction, the Council would not have been entitled to its costs in the Land and Environment Court. As we have determined that Craig J had jurisdiction to hear and determine the appeal from the Local Court, it is necessary to consider the applicant’s amended ground contending that his Honour erred in the exercise of his discretion in awarding costs in favour of the Council.

94. The applicant acknowledged the general rule that costs follow the event, but advanced two bases of alleged error in Craig J’s exercise of discretion. First, the applicant contended that there was a “serious question of uncertainty” associated with what constitutes a “transport depot” for the purposes of the LEP, and that this uncertainty tended in favour of there being no order as to costs. Secondly, the applicant contended that the Council had not been entirely successful before Craig J. The apparent basis for this contention was a submission by the Council in the Land and Environment Court, which was ultimately unsuccessful, that not only should the Council’s appeal be allowed, but that Craig J should find the applicant guilty of the offence charged.

95. The Council submitted that no error, let alone jurisdictional error, had been identified in Craig J’s exercise of discretion and that the costs order should remain undisturbed.

96. Costs are in the discretion of the court: Civil Procedure Act 2005 (NSW), s 98(1). The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1. However, it is acknowledged that if an appellant is unsuccessful on a particular issue, a special order depriving the appellant of costs in relation to that issue may be appropriate in some circumstances: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [7]. That said, unless the issue upon which the appellant was unsuccessful was clearly dominant or separable, it will not ordinarily be appropriate to differentiate as to costs between the issues on which the appellant was successful and those on which it failed: Elite Protective Personnel v Salmon (No 2) at [6].

97. In that light, the applicant’s submissions in relation to his Honour’s exercise of discretion as to costs must be rejected. No basis has been established upon which this Court should intervene in proceedings by way of judicial review.

An additional matter

98. As we have concluded that the primary judge was correct both in his determination that the Council was the prosecutor for the purpose of the Crimes (Appeal and Review) Act and in his construction of “transport depot” in the LEP, it is not necessary to determine whether judicial review of the primary judge’s decision was available and, if so, on what bases.

99. For the foregoing reasons, the Court dismissed the summons filed 23 May 2016 with costs.

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Decision last updated: 13 December 2016