Lin v Fairfield City Council - [2007] NSWLEC 568

Reported Decision: (2007) 159 LGERA 264

Land and Environment Court

of New South Wales

CITATION: Lin v Fairfield City Council [2007] NSWLEC 568

PARTIES:
APPLICANT
You Qin Lin
RESPONDENT
Fairfield City Council

FILE NUMBER(S): 60010 of 2007

CORAM: Preston CJ

KEY ISSUES: Appeal :- application for leave to appeal from Local Court against conviction and sentence - carrying out development for the purpose of prohibited development of a brothel - application for leave to appeal outside prescribed 28 days for appeal - whether interests of justice to grant leave - whether evidence of private investigator admitted in Local Court should have been excluded - private investigators's act in obtaining evidence does not constitute impropriety on behalf of Council - application for leave to appeal dismissed - applicant to pay respondent's costs

LEGISLATION CITED: Commercial Agents and Private Inquiry Agents Act 2004 s 11(1)
Crimes (Appeal and Review) Act 2001 s 31, s 31(2)(a), s 33, s 34, s 37, s 36(2), s 62
Environment Planning and Assessment Act 1979 s 76B, s 125
Evidence Act 1995 s 138
Public Health Act 1991 s 59(1)

CASES CITED: Bankstown City Council v Le (2003) 133 LGRA 155;
Brown v Chandler (1985) 18 A Crim R 257;
Camilleri's Stock Feed Pty Limited v Environment Protection Authority (1993) 32 NSWLR 683;
Cliftleigh Haulage Pty Limited v Byron Shire Council [2005] NSWLEC 692;
Cookson (1989) 45 A Crim R 121;
Denning v Department of Environment and Conservation [2007] NSWLEC 258;
Director of Public Prosecutions (NSW) v Dobbs [2005] NSWCA 115;
Hijazi v Canterbury City Council (No.2) [2007] NSWLEC 367;
Power v Penthill House Pty Limited (1993) 80 LGERA 247;
R v Sloane (1990) 49 A Crim R 270;
Ridgeway v The Queen (1995) 184 CLR 19;
Robinson v Woolworths Ltd (2005) 64 NSWLR 612

DATES OF HEARING: 20 August 2007

EX TEMPORE JUDGMENT DATE: 20 August 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr D McBride (barrister)
SOLICITORS
Goh Lawyers

RESPONDENT
Mr T Howard (barrister)
SOLICITORS
Ritchie & Castellan

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

20 AUGUST 2007

60010 OF 2007

YOU QIN LIN V FAIRFIELD CITY COUNCIL

JUDGMENT

1 HIS HONOUR: The applicant seeks leave to appeal against her conviction for carrying out development for the purpose of a brothel, being prohibited development, on premises at 190 Cabramatta Road, Cabramatta. The applicant had pleaded not guilty and a trial was conducted in the Local Court at Fairfield on 22 September 2006. At the conclusion of the trial, Magistrate Mahoney found the offence proven beyond reasonable doubt, convicted the applicant as charged, fined the applicant $10,000 and ordered the applicant to pay professional costs of the prosecutor of $4,500, witness expenses of $330 and court costs of $67.

2 Under s 31 of the Crimes (Appeal and Review) Act 2001, a person who has been convicted or sentenced by a Local Court with respect to an environmental offence may appeal to the Land and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 568
Decision Date: 20 August 2007

CaseChat Overview and Summary

You Qin Lin, the applicant, sought leave to appeal against her conviction for carrying out development for the purpose of a brothel, being prohibited development, on premises at 190 Cabramatta Road, Cabramatta. The respondent, Fairfield City Council, opposed the application. The legal issues the court had to decide included whether the applicant's application for leave to appeal was made outside the prescribed 28 days for appeal, whether the interests of justice required granting leave, whether evidence of a private investigator should have been excluded, and whether the private investigator's actions constituted impropriety on behalf of the Council.

The court found that the applicant's application for leave to appeal was made outside the prescribed 28 days for appeal. However, the court accepted that the application was competent to commence an application pursuant to s 33 of the Crimes (Appeal and Review) Act 2001. The court held that the applicant did not provide cogent reasons for the delay in lodging an appeal within the time allowed by s 31 of the Act. Furthermore, the court found that the evidence of the private investigator, Mr Gorton, was not obtained improperly or in consequence of an impropriety as per s 138 of the Evidence Act 1995. The court concluded that the prospects of success on the grounds of appeal were slim, and there would be no miscarriage of justice if leave to appeal was not granted.

The court dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs as agreed or assessed, to be paid to the registrar of the original Local Court at Fairfield within three months of the amount of costs being either agreed or assessed.

Orders