Luy Tien Le v Rockdale Council

[2007] NSWDC 187

CITATION:	Luy Tien Le v Rockdale Council [2007] NSWDC 187
HEARING DATE(S):	19th July 2007
JUDGMENT DATE:	19 July 2007
EX TEMPORE JUDGMENT DATE:	15 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Conviction Appeal upheld; Conviction quashed. Penalty and cost orders quashed.
CATCHWORDS:	Criminal Law - Appeal from Local Court - environment protection notice - notice sent to owner of property c/- occupier - notice vests rights in person served - failure to comply with order given by council - Court Attendance Notice served on occupier - occupier not vested with any rights pursuant to notice - failure to establish occupier and owner one and same person - Court Attendance Notice alleges Appellant person served - no power to amend Court Attendance Notice in respect of party to proceedings.
LEGISLATION CITED:	s. 124; s628(1) Local Government Act 1993
PARTIES:	Luy Tien Le (Appellant) Rockdale Council (Respondent)
FILE NUMBER(S):	07/12/0102
SOLICITORS:	Appellant: Sefl represented Respondent: Mr Bright

1 On 20 October 2006 the Local Court at Sutherland, presided over by Magistrate Maugham, purported to hear an allegation against the current appellant in respect of a failure to comply with an order made by the Rockdale Council upon him on 24 October 2005. The order was purportedly made pursuant to s 124 of the Local Government Act 1993. That section provides that:

“A council may order a person to do or refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.” (emphasis supplied)

2 S628 (1) Local Government Act 1993 provides that:

“ A person who fails to comply with an order given to a person under Pt 2 of Ch 7, that is an order in terms of any of the orders numbers 1, 3, 5 and 7-12 in the Table to section 124, is guilty of an offence.” (emphasis supplied)

3 There are other subsections of that Act all of which refer to a person who fails to comply with an order.

4 The Rockdale Council’s notice pursuant to s124 was addressed to Llaustrus Pty Limited. The notice was sent to that company care of the present appellant. It is argued by the respondent that the applellant would have had notice of the notice. True the appellant may have, but the notice was served upon somebody else, care of him and addressed to someone else care of him. It is not always appropriate to open mail addressed to other people even though it may be addressed care of us.

5 No connection has been shown in the evidence that I have seen thus far between the appellant on the one hand and the company to whom the notice was sent on the other.

6 True, it is beyond dispute that the appellant is the occupier of the premises. It is beyond dispute that, had he been served as occupier, the matter could well have proceeded. But he was not served. The owner was served. Unfortunately, of course, it now turns out that the owner, that is the company, was no longer in existence at the time of service. Again, no evidence was led before the magistrate in respect of ownership of the property.

7 The notice had provisions not just in terms of obligations to comply, but also vested rights in the person (or company) served. It did not vest rights in the person mentioned on the envelope in the address as ‘care of’. There were in the notice directions about consequences of failure to comply. Those directions were addressed, of course, to the person served, not to the occupier who was merely the vehicle by which the notice would ultimately come, it was thought, to the owner’s attention.

8 The case it would seem against the owner, whomever it/he may have been, was strong. What we do not know is whoever was the owner may well have been willing to comply with the order. The conviction is recorded against Mr Le. He may well - had he been served - have approached the owner. It may be he is the owner, I do not know. But what I do know is that the Court Attendance Notice which picked him out as being the person who had been served and failed to comply must have failed ab initio because he was never served.

9 In all the circumstances the proper verdict is one of not guilty. There would have been no power to amend the Court Attendance Notice because the amendment would have constituted a party entirely different to the party served to become the defendant.

10 That all being so, it seems to me, as I say, the appropriate verdict is one of not guilty. The conviction appeal will be upheld. All orders and penalties imposed by the learned magistrate will be quashed.

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