Lucy v OCC Holdings Pty Ltd
[2008] QDC 4
•31 January 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Lucy v OCC Holdings P/L & Ors [2008] QDC 004
PARTIES:
PAUL LUCY
(Appellant)
v
OCC HOLDINGS PTY LTD (ACN 104 553 497)
(First Respondent)
PELICAN LINKS PTY LTD (ACN 107 914 590)
(Second Respondent)
JACQUELINE MAREE CONNOLLY
(Third Respondent)
JOHN CONNOLLY
(Fourth Respondent)
KIERAN O’CONNOR
(Fifth Respondent)FILE NOS:
D 360-364 of 2006, Maroochydore
DIVISION:
Appellate
PROCEEDING:
Prosecutor’s appeals under s 222 of Justices Act 1886 against orders permanently staying complaints and that he pay the defendants indemnity costs
ORIGINATING COURT:
Magistrates Court of Maroochydore
DELIVERED ON:
31 January 2008
DELIVERED AT:
Brisbane
HEARING DATES:
26 – 28 November, 6 December, 2007
JUDGE:
Robin QC DCJ
ORDER:
Appeals allowed, prosecutions remitted to Magistrates Court for further hearing
CATCHWORDS:
Justices Act 1886 s 47, s 48 s 222, s 225 – Integrated Planning Act 1997 s 4.3.3, s 4.4.3, s 6.1.35A, s 6.1.44 – Local Government (Planning and Environment) Act 1990 s 87 – complaint sworn by Council officer against company charging contravention of a condition of a development approval under s 4.3.3 – complaints against senior officers of failing to ensure compliance by company – whether complaint invalid for failure to state essential ingredients of offence – whether complaint should have indicated that s 4.3.3 definition of “development approval” was relied on rather than Schedule 10 definition – whether complaint should have set out facts and statutory provisions whereby new owner of development site became bound by rezoning approval granted to previous owner under the repealed Local Government (Planning and Environment) Act 1990 rather than simply call it “successor in title” – whether complaint should specify whether “rezoning approval” of 1996 was under s 4.4(5) or s 4.7(5) of the repealed Act – whether a delegation by Council to its Environment Branch occurred and should be alleged – condition forbade clearing of native vegetation without written approval of “Council’s Environment Branch” – in about 1998 Environment Branch subsumed in Council’s Growth Management Unit – complaints alleged clearing of native vegetation when approval had not been sought – whether allegation that approval was not obtained or granted was necessarily implied – whether complaints failed for uncertainty or for uncertainty of the condition – effect of Court of Appeal determination in proceedings between Council and company that the condition did not fail for lack of finality or for precluding the exercise of rights under the rezoning approval – condition did not fail for uncertainty – effect of change in Council’s administrative structures considered – defendants’ contention that condition ceased to have effect after the restructure rejected – whether reference in particulars to Environment Branch approval “or any approval at all” vitiated the complaint by introducing uncertainty or alleging an offence unknown to the law – defence counsel sought amendment to delete “or any approval at all” but Magistrate refused – prosecutor opposed any amendment – whether appellant bound by that opposition – whether, if amendment of complaint were appropriate, the Magistrate was obliged to amend – whether too late to amend – Magistrate held the defendants had a case to answer – whether Magistrate, taking the view he did that complaints was legally defective (and an abuse of process), should have dismissed, rather than permanently stay them – whether omission to allege abolition of Environment Branch amounted to abuse of process – “person” in s 4.3.3 held to apply generally, not limited to persons specifically identified in legislation as bound by development approval conditions.
COUNSEL:
P. Lyons QC and D. O’Brien for appellant
G. R. Allan for respondents
SOLICITORS:
Corrs Chambers Westgarth for appellant
Brad Egerton for respondent
Reasons for Judgment
Mr Lucy appeals under s 222 of the Justices Act 1886 against a Magistrate’s permanently staying his complaints against each of the respondents and ordering payment to them of indemnity costs. So far as the second respondent Pelican Links Pty Ltd is concerned, the parties reached a compromise embodied in an order of Judge Brabazon QC in which the Magistrate’s orders were set aside, but the complaint was dismissed. There is a cross appeal by each of the other respondents claiming that the Magistrate’s orders should be changed so that each complaint is dismissed rather than stayed.
Each of the complaints was sworn by Mr Lucy as “duly authorised officer” of the Council of the City of Caloundra, and is headed Integrated Planning Act section 4.3.3. The section provides:-
“4.3.3 Compliance with development approval
(1)A person must not contravene a development approval, including any condition in the approval.
Maximum penalty—1665 penalty units.
(2) Subsection (1) applies subject to sections 4.3.6 and 4.3.6A.
(3)Also, subsection (1) does not apply to a contravention of a condition of a development approval imposed, or required to be imposed, by the administering authority under the Environmental Protection Act 1994 as the assessment manager or a concurrence agency for the application for the approval.
(4) In subsection (1)—
development approval includes an approval under section 4.4(5) or 4.7(5) of the repealed Act”.
The principal complaint is that against OCC Holdings Pty Ltd charging that on 21 July 2004 at Caloundra “it contravened a condition of a development approval”.
Other relevant provisions of the Integrated Planning Act (IPA) include:
“4.4.1 Proceedings for offences
A proceeding for an offence against this Act may be instituted in a summary way under the Justices Act 1886.
4.4.2 Limitation on time for starting proceedings
A proceeding for an offence against this Act must start--
(a) within 1 year after the commission of the offence; or
(b) within 6 months after the offence comes to the complainant's knowledge.
4.4.3 Executive officers must ensure corporation complies with Act
(1)The executive officers of a corporation must ensure the corporation complies with this Act.
(2) If a corporation commits an offence against a provision of this Act, each of the corporation's executive officers also commits an offence, namely, the offence of failing to ensure the corporation complies with the provision.
Maximum penalty for subsection (2)--the penalty for the contravention of the provision by an individual.
(3) Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure the corporation complies with the provision.
(4) However, it is a defence for an executive officer to prove--
(a)if the officer was in a position to influence the conduct of the corporation in relation to the offence--the officer exercised reasonable diligence to ensure the corporation complied with the provision; or
(b) the officer was not in a position to influence the conduct of the corporation in relation to the offence”.
The prosecutions were commenced in time. The individual respondents were proceeded against as executive officers of OCC Holdings Pty Ltd. Liability in them is dependent upon the company being duly convicted. The circumstances were such that lack of a conviction of Pelican Links was not fatal to the other prosecutions. See [53] below. The participation (or otherwise) of the two companies in the clearing alleged was by no means comparable. The respondent gains no assistance from evidence pleaded before Judge Brabazon QC regarding Pelican Links’ involvement.
The particulars included in the complaint and summons referable to OCC Holdings, preceding the conclusion that “AND THE DEFENDANT DID THEREBY commit an offence contrary to the Act in such case made and provided: Section 4.3.3(1) of the Integrated Planning Act 1997” were:
“Particulars
(1)Condition A12 of a certain rezoning approval given by the Council on 5 December 1996 provides:
‘No clearing of native vegetation is to occur on the subject development site without the prior written approval of Council’s Environment Branch. It will be necessary for the applicant and any subsequent owners to make a formal application (including plan) outlining reasons for clearing and identifying the impact of such clearing’.
(2)The rezoning approval applies to land now described as Lot 65 SP 166661.
(3)The rezoning approval is a development approval to which the Integrated Planning Act 1997 applies.
(4)At all material times, Pelican Links Pty Ltd was a subsequent owner of the subject land.
(5)Pelican Links Pty Ltd caused or permitted the defendant to implement the development of the subject land on behalf of Pelican Links Pty Ltd.
(6)On the date alleged the defendant caused some 4.85 ha of the subject land to be cleared of native vegetation.
(7)The defendant did not seek the prior written approval of Council’s Environmental Branch or any approval at all.
(8)The defendant did not make any formal application outlining reasons for clearing and identifying the impact of such clearing.”
After a hearing on 6, 8 and 9 February, 7, 19 and 20 June, 28 August to 1st September and 3rd October 2006, a good deal of which was taken up by legal argument, the learned Magistrate on 24 October 2006 gave his decision on a no case to answer submission. Although he read his reasons into the record at page 763 ff, he distributed reasons in a written form, by reference to which the appeals were conducted. A similar procedure was followed on 1 December 2006 when reasons for the costs order in favour of the defendants were published and formal orders were made.
Putting things briefly, the defendants argued that each complaint was fatally flawed for failure to include matters that ought to have been there[1] and that condition A12 was without legal effect.
[1] It was also contended that the inclusion of some words vitiated the complaints. See [74] ff.
Reference might be made at this point to sections 47 and 48 of the Justices Act which are the local version of Jervis’ Acts, introduced earlier in the 19th century in the United Kingdom to overcome a troubling phenomenon of prosecutions failing upon technicalities:
“47 What is sufficient description of offence
(1) The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law…
48 Amendment of complaint
If at the hearing of a complaint, it appears to the justices that—
(a)there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
(b)there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
then—
(d) if an objection is taken for any such defect or variance—the justices shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice”.[2]
[2] The following section should also be noted:
The first matter dealt with by the reasons of 24 October 2006 was the defendants’ [sic] application for amendment of the particulars by substituting 4.71ha for the slightly larger area particularised and by deleting from (7) the words “or any approval at all”. On the authority of McClintock v Noffke; ex parte Noffke [1936] St R Qd 73, as his Honour put it at pages 1 – 2, if those words were deleted:
“the prosecutor would be confined in his case to show that no approval issued from the Environment Branch. I interpret the application as a means of supporting the uncertainty submission which will be dealt with shortly because it would by extension then be impossible from the time that the Environment Branch ceased to exist to obtain such approval and the prosecution would be precluded from submitting that other approval from within another section of Council would comply with the condition”.
As will appear, much of the defendants' (respondents in the appeals') case depends on the Council's having reorganised its administration in about 1998 to amalgamate the former Environment Branch into the Growth Management Unit which was something patently known to Mr Lucy when he signed a letter dated 18 September 1998 on behalf of the Council addressed to the (then) developer's agent confirming approval of drawings for and construction of bulk earthworks and drainage works for Pelican Waters golf course and residential (Exhibit 29). At that date, none of the respondents was on the scene. Although the Council, so far as available evidence goes, did not highlight the administrative change, neither was it concealed. For example, in connection with some clearing contemplated by one or both of the corporate respondents, the relevant Council officer responded to their agent's request for contact by the following email (Exhibit 33 tendered on 9 February 2006):
"Sent: Wednesday, 26 May 2004 10:05 AM
To: Peter Hickey
Subject: RE: Tree clearing Request for Pelican WatersPeter,
Thankyou for your information. As discussed at our site meeting of 21/05/04, Council required that formal advice be forwarded from NRM&E in relation to the clearing of regrowth pursuant to the Vegetation Management Act 1999 – before any approval is granted by Council. This will expedite Council’s assessment for the vegetation clearing as required by condition 12 of the rezoning permit for the golf course site.
Further, as indicated at our site meeting once an assessment and approval has been granted by NRM&E, the clearing would be required to be undertaken under the supervision of Council Environment Officers in accordance with the following conditions:
This clearing may only occur on areas of previously filled land, in accordance with existing approvals for the site, on areas above HAT:
The method of vegetation removal is a “Broad Acre Mulcher” or rubber tracked excavator with a vegetation “macerator head” only. This is to minimise soil disturbance, and subsequent weed recruitment and will leave a layer of mulched plant material on the site:Be advised however that any areas that are proposed to be cleared for “preliminary survey work” may be required to be revegetated, should a subsequent approval alter the use of this site.
Regards,
Cameron Milne
Environment Officer
Growth management Unit – Caloundra City Council"
The day before, Exhibit 29, being an Exhibit to an affidavit of Mr Hickey, had been tendered. Exhibit 2 in this appeal was a copy of Judge Robertson's order of 4 October 2004 made in the Planning and Environment Court whereby the two companies were restrained from destroying or otherwise clearing any native vegetation on the defined part of the site without authorisation and certain other mandatory and prohibitory orders were made, operative “until the Council's senior environment officer Growth Management gives a direction to the contrary, or until further order of the Court”. Mr Milne described his employment “as environment officer in the town planning section, Growth Management” in evidence on 9 February 2006 (page 306). On 19 June 2006, Mr Birbeck, who had formulated Condition A12, at page 445 expressed some uncertainty whether he had been the senior officer in the Environment Branch about May 1996 when the relevant development application was assessed because he could not recall the date when that branch was amalgamated with “Peter Dousher's branch”. He mentioned a “complete restructure” about 1998 when "the Environment Branch was abandoned. And I went then into the planning and growth management unit". More cross-examination followed regarding asserted difficulties about Condition A12 and a possible application to clear land to the no longer existing Environment Branch. Mr Birbeck's evidence continued until 28 August. Next morning, Mr Allan, for the defendants made his “no case submission” (620) and his application to strike out “or any approval at all”, embellished by criticism of the Council for its “gravely serious omission” (628), whereby "the Planning and Environment Court was deliberately misled” (629), to disclose the disappearance of the Environment Branch. It was said it was “absolutely disgraceful that senior officers . . . had not advised Council . . . that there was no possibility of success in the institution of this prosecution because . . . as they must have known, Council's Environment Branch no longer existed” (628).
Subject to what has been said above about Judge Robertson's order referring to the Growth Management Unit (an aspect which may not have caught or been drawn to the Judge's attention), it seems clear that in the proceeding in the Planning and Environment Court (Caloundra City Council v Pelican Links Pty Ltd [2005] QPELR 128) and in the ensuing unsuccessful application for special leave to appeal (Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84) everything was on the basis that decisions would be made by the Environment Branch of the Council, subject to what might follow from the reference to “growth management” in the order. Otherwise, there is nothing to gainsay Mr Allan’s assertion that in those proceedings the assumption was that any approval under Condition A12 would be an Environment Branch approval.
The learned Magistrate rejected the defence application to amend paragraph (7) of the particulars, appreciating that the prosecution case was “that an approval for clearing native vegetation from another section of Council would have equated to the now non-existent Environment Branch” (page 2):
“It is a matter for the prosecution as to what particulars they provide and a matter of law for the court as to whether the particular words objected to in this instance provide to the prosecutor a cover for the gap in his case caused by the amalgamation . . . accordingly I do not propose to make any ruling in respect of those words in paragraph 7 and I choose to make no ruling in respect of area of 4.85 ha in paragraph 6 at this time”.
The next part of the reasons explained his Honour's decision to allow the prosecutor to re-open his case to tender an extract from the Gazette showing the Governor-in-Council's approval of a certain amendment to the planning scheme.
Next, at page 4, his Honour expressed the opinion based on “the evidence so far that there is clearly a case for the defendants to answer”. Although the reasons do not declare it, the circumstances were dramatic. Alerted to the possibility that clearing was going on, Council officers who attended the site were refused access by security officers there; they resorted to use of a helicopter to obtain a photographic record of large-scale clearing of substantial trees which had apparently occurred and which, judging by the presence of machinery in the photographs, may still have been underway. On earlier occasions, clearing had taken place with invited Council officers in physical attendance to supervise.
Was Condition A12 Uncertain?
The published reasons went on to resolve a number of issues favourably to the defendants, each of which was identified as a factor relevant to a discretion to stay. The first was uncertainty of Condition A12 in terms of the test indicated by Kitto J in Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 69-71:
“… The questions before us are principally directed to ascertaining whether, if the Minister purports to carry out the intention stated in the notice, the result will be the valid creation of further "conditions" of the licences.
What, then, is essential for the validity of a condition which the Minister purports to impose upon a licence, either originally or by way of addition? Good faith on the part of the Minister is necessary: it is not here impugned. Consistency with the Act and relevance to its purposes are undoubtedly required, but I have not been able to see that the proposed further conditions are open to attack in either of these respects. There is, however, another requisite of validity, as I read the Act, and that is that the condition shall possess reasonable certainty of meaning and application. The reasons which seem to me to lead to this conclusion may be stated quite briefly.
The conditions the Minister is authorized to impose are not conditions of forfeiture in the sense that upon breach the licence will come to an end, but neither are they mere terms for breach of which some penalty may be imposed or some step taken to enforce observance. The sanction behind them is found in a provision, in s.86(1)(c), that where the Minister is satisfied that a condition has not been complied with he may suspend or revoke the licence. If he is so satisfied, and if he decides to suspend or revoke the licence, no court has authority to substitute its opinion or decision for his. But the courts have authority, on well-recognized principles, to declare that he is not lawfully satisfied, and to hold void any purported suspension or revocation that depends upon his being satisfied, if he has proceeded upon an erroneous view as to what constitutes a breach of the relevant condition. This being prefaced, the nature of the power to impose conditions may be described from two points of view. From the licensee company's point of view it is a power in the Minister to subject the licence to a liability to be suspended or revoked in the event of his being satisfied of a non-compliance with the stipulation that it makes. From the Minister's point of view it is a power to prescribe for himself (and his successors) a standard which he (and they) will be in law bound to apply according to its true meaning whenever an occasion arises to decide under s.86(1)(c) whether he is satisfied that a non-compliance has occurred.
In this context it seems to me a necessary conclusion that what the Act means by a "condition" is a specification of acts to be done or abstained from by the licensee company - a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain - that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf. In re Sandbrook; Noel v. Sandbrook (1912) 2 Ch 471, at p 477 Such certainty includes both certainty of expression and certainty in operation: In re Exmouth; Exmouth v. Praed (1883) 23 Ch D 158, at p 164; Sifton v Sifton (1938) AC 656, at pp 670, 671; Clayton v Ramsden (1943) AC 320, at pp 326, 329, 332.
What is the alternative to the view I have expressed? It is that any stipulation at all concerning the conduct of the licensee company is within the Minister's power to impose, even though it fail to give the company any sure guidance as to what is required of it. To take an example, suppose the Minister were to impose a condition that the licensee should conduct its business in all respects with good taste. Surely a construction of the Act that would make that condition within power would be so unreasonable that it ought not to be adopted if any more sensible construction is fairly open. After all, the power given to the Minister is to prescribe the conditions of his own authority to deprive a licensee of its licence. Is it really to be supposed that the Parliament intended that he might prescribe conditions in words of such dubious import that no one but himself would be sure how far he meant them to go? The Parliament did not give the Minister power to suspend or revoke licences at will. The course it took was to require him to describe in advance, by the formal method of imposing conditions upon a licence, what conduct of the licensee would expose the licence to suspension or revocation. I can see no justification for so loose an interpretation of the Act that a form of words which by reason of vagueness fails to perform that function may be held a condition within the intended scope of the authority.
Judged by this test, the so-called conditions set out in the Minister's notices to the plaintiffs are in my opinion unsupportable as conditions which the Minister has power to impose. The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such general principle: see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth[1945] HCA 23; (1945) 71 CLR 184; Cann's Pty Ltd v The Commonwealth[1946] HCA 5; (1946) 71 CLR 210 The point is that a requirement of certainty in the sense I have described is inherent in the provisions by which the Minister's power is created: cf. per Diplock L.J., Mixnam's Properties Ltd. v. Chertsey Urban District Council (1963) 3 WLR 38, at p 53”.
The learned Magistrate found “sufficient uncertainty in the operation and application of the condition such that it should be considered in the context of the other matters”: page 8. I agree with his observation there that provisions of the Acts Interpretation Act and the Statutory Instruments Act were not a help to overcome “uncertainty”. His Honour thought certainty required “conditions which without much difficulty will allow the developer to know what it has to do” and which would enable the Council to “clearly see whether there is compliance or non-compliance”. In the end he appears to have had no difficulty from lack of specification whether the “formal” application should be in writing or with what he took (based on reference to Condition A11, referring to the Council's “Environment and Parks Branch") to bespeak a possible omission: “the relevant approving body has always been referred to in evidence as the Environment Branch which has been amalgamated into the Growth Management Branch and no longer has a separate and identifiable persona”: page 6. I agree with his view that nothing requires the developer to put its application in the hands of someone representing the Environment Branch and that “All that the condition requires is the delivery of the application documents to the council whose obligation is then to have them considered. Council's obligation of having the application documents considered is easily overcome by placing them before the section of Council which at the time bears the responsibility for such matters”: page 6.
I agree with his Honour that approval from a section within Council “called other than the Environment Branch” if complied with would produce “immunity from prosecution”, in particular “approval being on Council letterhead and signed by somebody from the Growth Management Branch or whichever Council department was responsible for environmental compliance matters”.[3] What concerned his Honour (page 7 of the reasons) based on Television Corporation was that the Council “is prescribing the conditions of its own authority before it can prosecute for non-compliance”. He also found (perhaps inconsistently) certainty “lacking from the point of view that once the application and supporting documents pass over the Council's front desk there is no distinct Environment Branch for it to go to”, but doubted whether that was “sufficient to strike down the Condition”. See page 7. The putative Environment Branch was seen as something of a loose cannon that might decide the putative application from a developer contrary to Council policy, or arbitrarily or capriciously - or simply not make a decision at all.
[3] It proved surprisingly difficult to locate authority for this commonsense approach. My associate’s researches extended to changes that might be thought analogous in the spheres of international law and industrial law. As to the latter see IWA- Canada, Local 1-207 v Zeidler Forest Industries Ltd. [1988] Alta. LRBR. 182, a decision of the Alberta Labour Relations Board. The (employer) company challenged the standing of the union “local” to bargain on behalf of certain of its employees. As the headnote states in relation to a “s.135 application”: In 1987, the I.W.A. (the “International”) was dissolved and replaced by two national unions. As a result of this process, IWA-Canada Local 1-207 applied to be declared successor to IWA Local 1-207. The employer objected that the dissolution and replacement procedure was defective, IWA Canada Local 1-207 did not exist in law, and no one had succeeded the defunct IWA Local 1-207.” IWA Local 1-207 had held certificates for “bargaining units” of the company. The reasons for decision conclude: “The question, from the Board’s perspective, is whether there has been a change of significance in the constitutional or jurisdictional make-up of the Local. Where, as here, the constitutional identity of the Local remains unaltered; where in fact it is the same group or organization, albeit operating under a new name as a result of a change of parent, we see s.135 as having no applicability. We should note, however, that if this conclusion were wrong we would be willing, in this case, to grant a s. 135 declaration. However, as we see it as inapplicable we believe the matter can be adequately dealt with as a simple change of name application…” See also Covington v Metropolitan District Railway Company [1903] 1 KB 231, 243-4 where Channell J said: “…what we have to find is who are the persons who now come within the description of “masters of the Supreme Court”, as used in the Act of 1985. This expression cannot mean merely the persons who in 1895 filled the office, nor can it depend upon the title, for the title might be changed from time to time, and in fact officers performing very dissimilar duties have at various times in the history of our Courts held the title of “master”. The expression “masters if the Supreme Court” in the Act of 1895 must therefore, I think, be construed to mean “ the persons from time to time filling the office now known and described as masters of the Supreme Court,” yet the statutes and rules quoted in the judgments of my Lord and my brother Wills shew that a Chancery taxing master is now a person who fills the same office and performs the same duties as at the time of the passing of the Act of 1895 were filled and performed by the persons then known as “masters of the Supreme Court”, and, consequently, he must now be considered as a persona designata directed by the Act of 1895 to tax and settle these costs.”
The reference to policy is presumably to Exhibit 25, the Council's formally adopted Local Planning Policy Significant Vegetation Areas (31 July 1996) which indicated procedures to assist the Council to assess the potential impact of proposed development on identified areas of significant vegetation, extending to submission of an Environment Impact Study (EIS) including a Vegetation Management and Retention Plan; the policy recommended that "pre-lodgement" enquiries be made of Council by letter; indeed figure 1 was a comprehensive flowchart illustrating the Pre-Lodgement Process for Applicants. The Policy provided for exemptions. Mr Allan laid much emphasis on this Local Planning Policy, which he submitted ought to have been incorporated by reference in Condition A12 to avoid uncertainty.
His Honour thought "uncertainty in application and operation" were "confirmed" by clear evidence of past clearing of native vegetation without any written application or approvals being granted; requests on occasion were made orally and Mr Birbeck or Mr Milne subsequently supervised the clearing. Mr Birbeck conceded in cross-examination "there was an election not to prosecute on one occasion because his section was short staffed". I fail to see how such indulgences go any way at all towards establishing uncertainty. I am acutely aware that all of the questions confronting the court presently are to be resolved in the context of a company and three individuals being proceeded against criminally and facing punishment upon any conviction.
If it matters, the present context is very different from that in Television Corporation, where non-compliance with the new conditions (which Menzies J, for one, did not find concerningly uncertain) might lead to loss of a licence to operate a television station. Here, the company was faced by a condition (assuming for the moment that the condition binds it) stating in the clearest possible terms that native vegetation is not to be cleared. The condition made an exception where approval was forthcoming. In respect of the clearing underlying the prosecution the company (although it had sought other approvals) did not seek any formal approval or, conformably with what had occurred in the past, invite Council officers to attend to observe or supervise what was done (on the contrary, Council officers interested in what was happening on the site were excluded). If there should be any uncertainty about the condition, then (subject to there being uncertainty about what is “native vegetation” which Mr Allan appeared to advance in supplementary oral submissions following Mr Lyons' reply – transcript p 410 ff) the only uncertainty arguable relates to the obtaining of the exemption. If uncertainty or other considerations lead to the processes for obtaining the exemption (approval) failing, then that would appear to be the developer's misfortune: the condition forbids clearing unless some sufficient authority for it can be got.
My view is that we are in the realms of unrealistic speculation here. It was correctly pointed out that it is not open to the Council to unilaterally change conditions to overcome a difficulty;[4] however, it was always open to the developer to apply to the Council to have conditions changed to provide a workable process, if that were necessary; the developer might have made an independent application under the Policy, Exhibit 25, if appropriate. The aspects of finality and certainty which in principle ought to characterise a development condition, if it is to be valid, are closely related and unsurprisingly are likely to be dealt with together, as for example in Mison v Randwick Municipal Council (1991) 73 LGRA 349, 352, 353 and 355, where Meagher JA asked, apropos a condition of “overall height of the dwelling house being reduced to the satisfaction of Council's Chief Town Planner”:
“What does ‘height’ mean? From what point is it measured? And if one works out the answers to those questions, what does ‘overall height’ mean? ... How can one reach the result that the condition is certain?”
and in Fogg, Meurling and Hodgetts, Planning and Development Qld [4445] - [4450].
[4] This is subject to submissions based on s 6.1.44 of the IPA.
In Mison, Priestley JA at 352 said that “what are finality and certainty for consent purposes must be judged by a substance approach rather than the strict kind of approach which requires absolute precision”. The outcome was that the Council’s purported consent was declared not a consent to the developer's application. I have no reason to doubt the authors’ assertion that there is no Queensland appeal decision in which the requirement of certainty has been applied to invalidate a condition. They quote a passage from Scott v Wollongong City Council (1992) 75 LGRA 112, at 118-19, in which there was unsuccessfully impugned a condition which required the applicant developer to carry out works specified in an attached document and plan “subject to final determination by Council of that document and plan or the relevant sections thereof”:
“. . . The principle of 'finality' is intended to protect both the developer and those in the neighbourhood who may be affected by the proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to the principle.
However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision.
The present is just such a case. I agree with Mr Davison that the application and consent have finally resolved the particular use of the land and the specific character of the building; and the circumstances of that use have been substantially prescribed. But a number of matters ancillary to that use have been generally (although in some cases with a degree of precision) stipulated, with details left for later determination. Conditions 1, 4, 14, 16, 18, 19, 20, 21, 25 and 26, in addition to 27, fall within this category . These conditions differ as to the extent of the detail left to be settled, but arguably none of them is final.
However, what distinguishes them is that the exercise of the decision making power they each contemplate will certainly not alter the development "in a fundamental respect", nor will the development be "significantly different" from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: - ‘No narrow or pedantic approach is warranted’. Although no question arises about the standing of the appellants which is secured by s123 of the Environmental Planning and Assessment Act, or their right to challenge this development, it is not beyond comment that it is the objectors who seek to assert the lack of finality in condition 27 and not the developer, the second respondent, whose task it is to carry it out.
I am therefore of the opinion that condition 27 is not void for want of finality and the suggestion that it was void for uncertainty or linguistic ambiguity was not pursued. I need not consider the question of severability.
Similarly, Mr Parker adumbrated, but withdrew, an argument that condition 27 was beyond the first respondent's power to impose because it was not fairly or reasonably related to the development consent”.
The court should be extremely careful about declaring invalid conditions along the lines of A12 which are so commonly encountered in development approvals, with possible ill consequences; for all that appears, the whole system might become unworkable without them. The Magistrate's reference to A11 (which also refers to "Council's Open Space and Landscaping Policies and Guidelines applying at the time") inspired reference to the conditions generally – revealing several instances of matters left for “later and final discussion”. They refer to "artificial wetlands being designed, vegetated and maintained in consultation with and to the satisfaction of Council's Environment Branch and Drainage Engineer" (what would happen if they disagreed?) in A13, approval of the DPI (Fisheries) for approval of mosquito control measures (A14), roadwork over Council's former sanitary landfill being "to the satisfaction of Council's Chief Environmental Officer" (A15), approval of the DPI for vegetation clearance below Highest Astronomical Tide (A18) - this last became potentially pertinent to Mr Hickey's written request to the Council's CEO (attention Cameron Milne) for permission to clear "the regrowth vegetation on the future fairways of the un-constructed (back 9) of the Pelican Waters Golf Course" in a letter of 25 May 2004 (at which time all concerned experienced no difficulty in substituting the Department of Natural Resources for NRM&E as the case may be - see Exhibits 33, 34 and 37). The Erosion and Stormwater Management Plan had to satisfy Council's Development Engineer and Environment Officer (B8); an access easement to facilitate Council's maintenance of the Esplanade was to be located “to the satisfaction of Council's Environment Branch” (B9); the Branch was to approve the Golf Course Management Plan (C10); aspects to do with carparking areas, tennis courts and a night practice range creating potential noise or light nuisance were to be handled “to the satisfaction of the Chief Environmental Health Officer” (C4); the Council could agree to changes in the arrangements limiting hours of maintenance which might produce noise (C6); Council's Development Engineer and Environment Officer were to be satisfied with the Erosion and Stormwater Drainage Management Plan (C8); food preparation areas and refuse container storage arrangements had to satisfy Council's Health Branch (page 10(a)(b)). A noise impact assessment was to be carried out to the satisfaction of the Chief Environmental Health Officer (D3), who might agree to expanded hours for activities such as delivery of fuel and stock and also the car wash and mechanical workshop (D4, 5 and 6). Roads and bikeways were to satisfy Council's Development Engineer (D7, 8); its Water and Sewerage Engineer was to approve a treatment and recycling facility proposed for the car wash (D10). There are others.
While one can understand the excitement that the supposed bombshell of the disappearance of the Environment Branch represented during the trial, a matter which did not of itself particularly concern the Magistrate, as I read his reasons, I regard this as something of a false issue. Neither the defunct Environment Branch, nor the replacement Growth Management Unit, nor any element of the Council's administrative structures has any legal existence or personality, convenient as it may be for the persons dealing with the Council to be in a position to deal with officers assigned to them as directly and conveniently as possible.
Among the authorities placed before the Magistrate was Caloundra City Council v Minister for Natural Resources [2001] 1 Qd R 365, in which Wilson J said at 370:
“Of its nature, a local government must make decisions by resolution of the Council. Section 386 of the Local Government Act 1993 affords the mechanism for the appointment of a delegate ...”
Her Honour determined there was no properly constituted delegate for relevant purposes. I reject Mr Allan's submission that there ought to have been some formal delegation to Environment Branch. One is familiar with delegations to named individuals, which the Environment Branch never was. It has not been shown there was any relevant function that might be delegated pursuant to relevant legislative provisions. It seems to me inescapable that all approvals or decisions of any kind entrusted to “branches” must be taken as Council’s decision, and that no more is happening than identification for the convenience of Council and the developer and anyone else concerned of the section, branch or designated officer likely to be bringing thought to bear on the relevant issue(s). One can be certain that advice of the determination (if written at all) would be contained in a formal letter on Council's letterhead, committing the Council, as a determination by it. My conclusion is the same, whether reached in a criminal context in which the criminal standard of proof applies or whether the context is a civil one.
The Magistrate’s Treatment of the Delegation Issue
After identifying uncertainty of condition A12 in its operation and application as a factor in the mix, the learned Magistrate noted the defence application for the proceedings to be stayed as an abuse of process, locating authority for his jurisdiction in Williamson v Trainor [1992] 2 Qd R 572 and Doonan v McKay [2002] QCA 514 at [12]. See page 8. He then turned to the grounds the defence presented as impugning the prosecution’s conduct in a way that supported a stay for abuse of process. I take it the grounds were added to the uncertainty identified. First of them was lack of a delegation (or any proof of a delegation) of the Council’s powers to its Environment Branch under s 8.7 of the Local Government (Planning and Environment) Act 1990:
“Delegation
8.7 A local government may, by resolution, delegate its powers under this Act (other than a power that is required to be exercised by resolution) to-
(a)the person who ordinarily presides at meetings of the council; or
(b) an officer or employee of the local government; or
(c)a board or committee consisting of some or all of the following-
(i) councillors;
(ii) officers of the local government;
(iii) employees of the local government.”
Here, his Honour was prepared to make an assumption that things had been done regularly, albeit not recorded, and that there was a delegation to the Environment Branch continued under s 6.1.47 of the IPA and:
“lawful while the Environment Branch was in existence. Once the Environment Branch was no longer a distinct section within the Council however there was no delegation to the Growth Management Section or any other branch of Council and anything purportedly done by someone with an assumed authority under Condition A12 would not be lawful”. (page 10)
It is not clear to me whether this involved an assertion that the approval of 31 May 2004 signed on Council letterhead by Cameron Milne, Environment Officer for the thinning of vegetation (Exhibit 36) pursuant to the “application” in the form of a quotation by the contractor (Exhibit 35) was unlawful. Probably so. His Honour went on to say that his reasoning “may well be academic as there was for the Council’s part little adherence to the procedure required by A12”, presumably a reference to its acting upon the informal requests. This issue was identified as one falling “for consideration in the context of other matters raised” (page 10). My view, as indicated, is that in legal reality it is the Council, as such, receiving applications, considering them and making decisions under the Condition and that it is not to the point that no delegation is established for purposes of a provision like s 8.7; it is not possible to identify any “power … under (the) Act” that might be the subject of delegation.
Were the Complaints Defective? – The Magistrate’s Approach
There is no doubt that his Honour took the next defence point seriously. At page 10 he wrote:
“OMISSION OF ESSENTIAL LEGAL ELEMENTS OF THE OFFENCE FROM THE COMPLAINT
A further submission of the defence was that ‘the deficiency in the complaints exists because essential legal ingredients are not averred on the complaints’.
The prosecution has brought the charges against the two (2) corporations under S.4.3.3 of the Integrated Planning Act. The charge is ‘contravened a condition of a development approval’ which is the wording used in S.4.3.3 however A (12) is not a condition which came into existence under the Integrated Planning Act as it was made under the repealed Local Government Planning & Environment Act 1990. On the face of the complaint there is no apparent nexus between Condition A (12) and the offence under the Integrated Planning Act.
The defence contends that the deficiencies in the averment of the legal ingredients on the complaint include:-
(1) The complaint does not aver that Condition A (12) is a development approval. It avers that the ‘rezoning approval’ is a ‘development approval’; and
(2) The complaint does not aver that Condition A (12) is binding upon the original applicant’s successors in title.
Clearly in order to prove the charge the prosecutor would have to prove to the required standard both the matters referred to at (1) and (2) and to do so would have to have resort to S.6.1.23 (Continuing effect of approvals issued before commencement) and S. 6.1.24 (Certain conditions attach to land) of the Integrated Planning Act. Neither of those sections were however alleged in the complaint nor I should add was there any averment as to how Condition A (12) being a condition of a rezoning approval became a “development approval” as referred to in the charge.
I agree with the defence submissions on this point that the complaints are legally defective by the omission of essential ingredients and I adopt the submissions made by defence counsel in that regard.”
No consideration appears to have been given to whether amendment of the complaints could or should have been ordered under s 48 of the Justices Act, assuming that they were deficient. This may well have been because of the determination of Mr Myers of counsel, who appeared for Mr Lucy, not to seek any amendment in the face of Mr Allan’s submissions. In the appeal, Mr Allan with some justification relied on the doctrine that litigants ought to be treated as bound, in particular, as bound in a subsequent appeal, by the way in which they chose to conduct a proceeding. The situation under s 48 is in my opinion more complicated. There is room for argument whether the command to the court by the use of the word “shall” signifies that a proper request by the prosecutor for amendment must be acceded to, or whether it signifies that it is incumbent upon the court to make appropriate amendments, even against the prosecutor’s wishes. The latter alternative places the court in the potentially invidious situation of formulating a complaint in words that will serve best to secure a conviction. There is clearly a requirement that the evidence is sufficient to support a conviction on the charge properly formulated. There is authority supporting the view that the court has that onerous obligation, including Griffith CJ’s judgment in Hedberg v Woodhall (1913) 15 CLR 531, a case of alleged “duplicity” in which the defendant was charged with having “possession or control” of undersized fish. The Chief Justice said at 536:
“When an information charges two offences, it is the duty of the Magistrate, if he thinks so, to tell the informant, and to inform him of his right of election, and ask him on which charge he desires to proceed. But in case of an illiterate or ignorant complainant (and I suppose there are many such), if he does not know what to do that would not, in my opinion, relieve the Magistrate from his duty to hear the evidence and form his own conclusion as to whether either of the offences charged is proved”.
Defective complaints and Informations – What Approach do the Cases Show?
Earlier, in Kelly v Wigzell (1907) 5 CLR 126, the defendant tramway conductor was charged with permitting more than the prescribed maximum number of persons to travel in a tramcar in Melbourne Street, South Brisbane; the evidence showed that police boarded the tram in “Victoria Place” (a short approach continuing Melbourne Street to the bridge) and counted passengers while going across the bridge. It was contended there was variance between complaint and evidence, although the names described different parts of the same street. The Supreme Court confirmed the Magistrate’s dismissal of the complaint on the ground there was no evidence that any offence had been committed in Melbourne Street, as the passengers hadn’t been counted until after the tramcar left that place. The High Court allowed an appeal. At 128, to a submission that no amendment was asked for in the Magistrate’s Court, and none should be granted now, Griffith CJ said “Sec. 48 says that amendment ‘shall’ be made, and the Court will therefore regard the amendment as made”.
In Stait v Colenso (1902) 28 VLR 286 Williams J said at 288:
“Having regard to sec. 187 of the Justices Act 1890 I think it is not open to a defendant to take any objection to an information for any defect therein in form or substance. I think the utmost the defendant or his adviser in this case could have done was to point out this defect to the justices, and having done that the justices, who are to be presumed to know the law, should have decided there and then whether wilfulness was a necessary ingredient in this offence, and then, if they were of opinion that it was necessary, it was their duty to at once amend and insert the word ‘wilfully’, and proceed to try the case, and then say if the evidence was sufficient to support the charge. It seems to me to be perfectly plain when this objection was raised the justices ought to have amended the information whether the informant refused to amend or not. They ought to have said ‘We think it is necessary and we will amend.’ If a conviction had been made on the information as it stood, this Court on review would have looked at the evidence, and if it fitted the charge would have put the proceeding right. The case will be remitted to the justices, with an intimation of my opinion that the word ‘wilful’ should be inserted in the information, that the information is defective, that the objection is a good one, and that they should amend the information accordingly. What constitutes wilful negligence is a question of fact for them to decide.”
These cases, and many others of interest can be found in the annotations to s 47 and s 48 in Kennedy Allan, The Justices Acts (Qld) (3rd edition, 1956). I informed counsel that I was consulting this helpful work, as was Williams J in Tunney v Keehn, ex parte Keehn [1977] Qd R 6 at 10, having noted that the magistrate was “required” by s 48 to amend the complaint if he felt there was any defect in it.
No counterpart of those sections or Jervis’ Acts was available which might have served to save the information held defective by majority of the High Court in John L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508, the source of principles as to the requirements of the process by which a summary proceeding is commenced much relied on by Mr Allan by virtue of the application of them in Marshall v Averay [2007] QPELR 137 at [4] [19] ff. At 528, Brennan J spoke of saving the criminal law from “the reproach of being crippled by technicalities”. This was in the course of a dissenting judgment. Toohey J wrote another. At 530, Brennan J quoted Griffith CJ in Hedberg v Woodhall (1913) 15 CLR 531, 534-35 as to the effect of the “Jervis Acts” which “did away with” …
“innumerable objections that could be taken in cases before Magistrates” to the effect that “if objections are taken which really do not go to the merits of the case the Magistrate is not to stay his hand, but to proceed to dispose of the case on the merits”.
The deficiency which the majority in John L held fatal to the information was failure to state the respect(s) in which an advertisement offering 1,000 litres of free fuel to anyone who purchased a car on the Australia Day weekend for over $3,000 (not honoured for some such purchasers in the event) was false or misleading. The majority were of the view that, for example, it might be appropriate to include assertions about the company’s state of mind at the time of publishing the advertisement.
Toohey J joined Dawson J (part of the majority in John L) in dissent in Walsh v Tattersall 188 CLR 77. In this case the majority (again reversing the final appellate court of a State) identified duplicity as the fatal flaw in a count of obtaining payments or benefits by dishonest means, construing the legislation as creating only offences of dishonestly obtaining a single payment or benefit. Mr Walsh allegedly obtained weekly payments over 13 months by dishonestly representing that a health condition precluded him from working. The majority, who favoured allowing the appeal, were concerned that there may have been active dishonesty in respect of some of the single payments or benefits, but not in respect of others. The focus of Mr Allan’s reference to Walsh was Kirby J’s description and justification at 110-12 of the course of High Court authority. What is said there is for the most part pertinent presently, even though written about duplicity:
“The policy of precision in criminal pleading
With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this court from Johnson v Miller through Iannella v French and up to S v The Queen, the latter having been decided in 1989. Quite apart from the consistent application of the authority of this court, there are reasons of legal principle or policy which favour the approach of this court and which resist the approach which has apparently found favour in England and New Zealand. These reasons are:
1. Compliance with the rule of strictness is a correct practice to require of prosecutors. It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction.
2. The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller and restated in S v The Queen. The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence. It assists in decisions about how to plead. It clarifies contested questions about the admissibility of evidence relevant to the offences so specified. It contributes to accurate sentencing where a conviction is recorded upon those offences. It also avoids later problems with respect to pleas of autrefois acquit or autrefois convict.
3. Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon. Nowhere is this risk more evident than in cases of alleged sexual misconduct as illustrated by S v The Queen. But it is also a risk present in cases such as Weinel v Fedcheshen, this case and perhaps others.
4. In this case, as I hope I have demonstrated, the purpose of parliament in creating the offence under s.120 of the Act was to create a separate offence for each payment or benefit. From the point of view of the prosecution, the advantages of reducing the 30 separate charges which were originally foreshadowed by police to a single composite charge were clear enough. Proof of dishonesty at some stage in the receipt of a payment or benefit would then be likely to contaminate all other payments and benefits received. But that would divert the attention of the judicial officer deciding the case from considering an issue which would be presented clearly by individual counts but not so clearly by one “rolled up” count. That issue is whether, at some stage, any dishonesty found on the part of the appellant was displaced by a mere passive payment of benefits by the Commission. If each payment and benefit had been separately charged, it would still have been open to the prosecution to suggest that an inference of dishonesty, proved beyond reasonable doubt, carried over from one early payment or benefit to those that followed. But at least the attention of the prosecutor, the accused and the judicial decision-maker would then have been focused upon each individual offence. I believe that that is what the Act required. Moreover, it was not irrelevant to the evidence adduced in the appellant's case, particularly having regard to his interview with the police in June 1993 and his statements acknowledging his fitness to work in July 1993 made to the Commission's medical adviser. Because a “rolled up” single count was charged, none of these issues was specifically addressed. The outcome of the prosecution might have been the same. But the process would have had the necessary integrity.
5. A holding which would diminish the stringency of this court's past authority would encourage imprecision in criminal pleading where precision is desirable. It would condone a slackness in the pleading of criminal charges which this court has hitherto rejected. It would substitute pious words for a strict legal practice which the courts uphold. As this case demonstrates, precision is often needed because the point is not immediately seen by the accused or those representing the accused. Not all accused are legally represented. Those who are may not be adequately represented. The availability of legal representation in cases involving offences such as those charged here may decline with other demands on public legal assistance. It is therefore desirable that this court's instruction should be addressed to the practices of prosecutors and to the attention of judicial officers.”
Ianella v French and S illustrate the familiar pattern of the High Court differing from the State appeal court and division of opinion among the High Court judges. In the latter, the generalised evidence of incidents of sexual impropriety could have referred to any of the three offences charged; in the former, the duplicity (not concerning to McTiernan J) arose where a landlord was charged and convicted on appeal to a Supreme Court judge with having ‘wilfully demanded or wilfully recovered as rent’ a sum by statute irrecoverable: the problem was that as the charge alleged two offences in the alternative, it was impossible to say of which offence the appellant had been convicted, as in R v Disney [1933] 2 KB 138.
(a) That the highway was in a built-up area;
(b) That it was in a speed zone.
The Victorian equivalent of s 47(1) did not help the prosecution, because the words of the regulation had not been used. See paragraph 17. Smith J said at paragraph 13:
“It is difficult to see any significant hardship to an accused in allowing reg 1001(1)(a) and (c) to apply in the same situation but it seems to me the conclusion I have reached follows from the proper construction of the regulation.”
Summarising, there were “mutually exclusive offences” (paragraph 9), (a) of which was expressly relied on in the charge, (c) of which was the one proved on the evidence; the prosecution made a complete mess of things, in a way not reflected here.
Tunney v Keehn, ex parte Keehn [1977] Qd R 6, which applied R v Holloway Prison (1916) 85 LJKB 689, 690 was relied on for Mr Lucy to establish the leeway a complainant has in departing from the strict language of an offence-creating provision. Some interesting matters were dealt with by Dunn J (Lucas J agreeing) at 13-14:
“Regulation 71A(1) cannot, in my respectful opinion, be regarded as a masterpiece of legal drafting. It appears to me that, as a matter of construction, sub-clause (b) ("any person who fails, refuses or neglects to comply with the provisions of sub-clause (a) shall be guilty of an offence") can have application only to the first part of sub-clause (a), which contains positive legislative commands, with which there may be a failure, neglect or refusal to comply; and cannot apply to the proviso. A person who ignores the proviso and drives a vehicle into a ‘station’ which is indicated by a notice to be closed does something which the proviso states to be not necessary; but he cannot be regarded as having failed or refused or neglected to comply with any provision of the sub-section, for compliance imports obedience to a requirement.
It follows that, in my opinion, it was not in strictness necessary to include in the complaint the words ‘there being no notice relating to such station indicating it was closed’.
The argument that the complainant failed to prove that there was, at the time of the offence, no notice indicating that the "station" was closed fails. This argument was based upon the proposition that what was proved by the complainant was the wording of various signs (none of which indicated that the ‘station’ was closed) at the time of the hearing, but not at the time of the offence. However, it is clear from the whole of the record, and particularly from the submissions to the magistrate of counsel who then appeared for the applicant that the case was fought on the footing that the signs described by Constable Skepper were in the position described by him and worded as he explained, on the day of the offence.
In the course of a thorough argument, Mr Fryberg – counsel for the applicant – submitted that the court would issue certiorari to quash the conviction because it was a conviction of a non-existent offence. The submission was that the offence created by the regulation was a failure ‘to drive or cause to be driven’ a motor vehicle to a weighbridge checking station, and that ‘failure to drive’ did not constitute an offence.
The point was not raised by the order to review and, clearly enough, was thought of for the first time by Mr Fryberg long after the hearing before the magistrate, at which other counsel had represented the applicant. However, were the point a good one, it may well be that the applicant would be entitled to relief ex debito justitiae.
But I have concluded that the intention of the regulation is to make ‘failure to drive’ one offence and ‘failure to cause to be driven’ a separate offence; it is in my opinion designed to have the widest possible operation, and to impose duties not only on drivers actually in charge of vehicles but also on those in authority over such drivers and their vehicles. The applicant was not, it seems a person in authority, and he was therefore appropriately charged and convicted.”
As to the first aspect, Williams J (Lucas J again agreeing) says at 10-11:
“The only other matter to which I desire to make reference is the submission that there was no evidence that the weighbridge in question was open at the relevant time, this being of some importance in view of the proviso to reg. 71A(1)(a) which is as follows:
‘Provided that it shall not be necessary for any motor vehicle to be driven into any such station where any notice relating thereto indicates that it is closed.’
With this submission was allied the necessity or otherwise for negativing the proviso or exception in terms of s 76 of the Justices Act.
The evidence discloses that there was ample evidence upon which the magistrate could conclude that the weighbridge was in fact open, and from which he could conclude also that there was no notice indicating that it was closed. Although exhibit 2, a rough sketch drawn by the witness for the respondent, was not expressly stated to represent the actual position at the relevant time, it seems to me that the notation at the top of that exhibit reading ‘Burpengary Weighbridge Checking Station Entrance Open’ was some evidence upon which the magistrate might well have acted in the absence of any other evidence to the contrary. The evidence further shows that shortly after the appellant drove the vehicle to the depot, the owner drove it to the weighbridge which was then open. He did this after the appellant had been directed so to do by the police officer but had refused to comply.
Section 76 reads:
‘If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence.’
If a proviso is such as to require that it be negatived in the complaint, a failure to do so will render the complaint defective. See Kennedy Allen on The Justices Acts (Queensland) 3rd Ed. Pp. 213-4 and cf. Serisier v Soleas, Ex parte Soleas [1965] Q.W.N. 21.
The principles upon which this proposition is based are clear from the above references and the cases there referred to. See for example R v Audley [1907] 1 K.B. 383 at p. 387 where it was held that the question is whether it is a matter of defence or a matter necessary to define the offence. The application of those principles to specific exemptions, exceptions, provisos or conditions has from time to time created difficulties.
In this case there has been a purported negativing of the proviso and as I have said, the evidence indicates that the weighbridge station was not closed at the relevant time and there was no notice indicating that it was closed.”
I mention this aspect for the purpose of making clear that s 76 was not part of the arguments before the court. This appeal has proceeded on the basis that Mr Lucy bears the onus of proof. Satisfying it may be facilitated by particular features of the circumstances. For example, an inference that there was no “approval” is, in my view, inescapable upon proof that none ever was sought. Assertions by legal representatives such as that the inability to clear native vegetation rendered the rezoning approval nugatory, as to which there was no evidence, create no obligation in Mr Lucy to counter them.
Given the conclusion reached that the complaint was valid (which allows scope for late amendment that would not otherwise exist: Tunney (at 9-10), there is little point in considering the defendants’ cross-appeal seeking that the complaints be struck out or dismissed, rather than permanently stayed, which would represent a neater outcome. If, contrary to my view, amendments were necessary, section 225(3) of the Justices Act now puts it beyond doubt that this court may make them on appeal.
Costs – Abuse of Process?
The learned Magistrate’s costs order, unusual for incorporating assessment on the indemnity basis, necessarily falls with the order for a permanent stay of the complaints. While it is strictly unnecessary for this court to say much on the costs aspect, some features of the submissions might be noted: further, fairness to Mr Lucy makes it appropriate for this court to indicate that it does not agree with his Honour’s condemnation of Mr Lucy. The power of a Magistrates Court to award costs “incidentally to the prevention of an abuse of its process” was contemplated in Phillips v Morris, ex parte Director-General, Department of Families, Youth & Community Care [1999] 1 Qd R 89, 91; his Honour proceeded on the basis that interstate decisions (there being none directly in point in Queensland) established that “before the costs order was made there was a finding of some vitiating conduct on the part of the party against whom the order was made”. He said in his reasons of 1 December 2006:
“The misconduct in this case which in my opinion is sufficient to justify the order is the inference which arises from the particulars supplied in this matter and specifically the words in paragraph 7 of the complainants ‘or any approval at all’. There is a clear inference arising from those words that they were included to cover the gap which arose when from the time of the amalgamation of the Environment Branch into the Growth Management Unit that no approval of the Environment Branch could issue.
Had it been particularised in the complaint that the Environment Branch no longer existed but that the approval could issue from another section of council the issue could have been disposed of at the outset with the quite obvious saving on costs for all parties concerned.”
The defendants’ submissions in the appeal on this aspect could be considered somewhat overblown. It was submitted (paragraph 131 of the written submissions) that “it is difficult to conceive of a clearer example of an abuse of process than that disclosed by the evidence in this case”. It appears to be suggested that Mr Lucy, by swearing a complaint said to assert the existence of the Environment Branch made a false declaration contrary to s 194(1) of the Criminal Code, rendering himself liable to three years imprisonment (paragraph 121 ff) and that he attempted to pervert the course of justice in that way (paragraph 112 ff). The alleged seriousness of all this is the assertion (paragraph 97) that “an approval under Condition A12 was impossible to obtain upon the abolition of Council's Environment Branch in 1998, then … the complaints against both the corporate defendants and the individual defendants as executive officers could not succeed (paragraph 97)”.
Maintaining proceedings that can clearly be seen as foredoomed to fail is the classic case of abuse of process: see Walton v Gardiner (1992) 177 CLR 378, 393. It is charged that Mr Lucy has done this, that not only has he known from the outset of the abolition of the Environment Branch, yet sworn complaints: he persisted in them even after the fate of the Branch was exposed in the court. Dishonest concealment of what happened was said to be established by the inclusion of “or any other approval” in the complaints. Williams v Spautz (1992) 174 CLR 509 establishes that even where there is a prime facie case, a prosecution may be an abuse of process and permanently stayed, for example where the purpose underlying them is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed. I did not take this to be any aspect of the charge levelled at Mr Lucy. Costs were sought on an indemnity basis in reliance on Colgate Palmolive Company v Cussons Pty Ltd (1993) 118 ALR 248, on the basis that (to quote paragraph 126 of the submission):
“The proceedings clearly were commenced in ‘wilful disregard of known facts’ (namely that the Environment Branch had been abandoned in 1998) and resulted in the ‘making of allegations that ought never to have been made’:- namely that the defendants had contravened a condition of a development approval, the proof of which depended on proof of the existence of Council’s Environment Branch, which, as a matter of fact, was an impossibility.”
I am unable to read the complaint as asserting any more about the Environment Branch than its being identified in Condition A12 (the basis of the development offence charged) and that no application was made to it for an approval (which might have precluded clearing’s being a breach of condition and potential offence). The inference could perhaps be drawn that an assertion was being made of the continued existence of the Branch, to the extent that it ever had any existence, but surely other inferences are open. His Honour gave no hint of considering other possible inferences, or of reasons for rejecting them. From one point of view, the addition of “or any other approval” might be seen as putting the defendants on notice.
The foregoing reasons are intended to demonstrate my view that far too much significance has been attached to the Council’s administrative reorganisation, which I am inclined to think was something neither here nor there in the overall picture. Indeed, his Honour seems to have taken a similar approach, until diverted by the thought that Mr Lucy (and perhaps others in the Council) became involved in devising and implementing a wicked scheme to secure a conviction of the defendants by means meriting condemnation. I am unsure of the implications of his Honour’s statement at page 7 of the later set of reasons that “The final question is whether the council by continuing with the prosecution has by its conduct acted in such a way that the defendants should have their costs met”.[7] I took him to be contemplating that, had acceptable means been adopted, the complaints might have proceeded to a successful conclusion, from the prosecution’s point of view. My views differ from his in that I think the complaints as sworn were sufficient.
[7] Italics added. It would seem odd to order indemnity costs throughout unless the view was taken that the very commencement of the prosecutions demanded punishment.
The “no case” submission ought to have been refused at the trial. The trial ought to have been completed by allowing the defendants to add to the total body of evidence, if they wished. The Magistrates Court could then have reached a conclusion, on the merits, in relation to each of the defendants before it.
Pursuant to s 225(2) of the Justices Act, the orders of 1 December 2006 having been set aside, each of the complaints (that against Pelican Links Pty Ltd, of course, excepted) is returned to the Magistrates Court. There is no reason for thinking that his Honour would give other than proper, impartial consideration to the matters; however, the practice in such cases is to err on the side of caution, and direct that another Magistrate hear each of the proceedings, which, regrettably, may have to be done afresh.
I will entertain submissions about costs, in the absence of which it will be ordered that the respondents in each of the appeals now before the court pay the appellant his costs.
“49 Amendment
If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or whether or not the defendant is in custody, may grant the defendant bail or may suffer the defendant to go at large without bail”.
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