M v Shire of Kalamunda
[2019] WASC 340
•20 SEPTEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: M -v- SHIRE OF KALAMUNDA [2019] WASC 340
CORAM: HILL J
HEARD: 12 JUNE 2019
DELIVERED : 20 SEPTEMBER 2019
FILE NO/S: SJA 1119 of 2018
BETWEEN: M
Appellant
AND
SHIRE OF KALAMUNDA
Respondent
ON APPEAL FROM:
For File No: SJA 1119 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S SHARRATT
File Number : MI 11154 of 2016
Catchwords:
Criminal law - Appeal against conviction - Demolition of building without a permit - Owner of land did not do demolition work - Whether owner criminally responsible for acts of third party
Criminal Code (WA) s 22 - Defence of honest claim of right - Whether learned magistrate erred in failing to consider defence - Whether defence was open on evidence - No evidence of mistaken belief by owner
Legislation:
Building Act 2011 (WA), s 10
Criminal Appeals Act 2004 (WA)
Criminal Code (WA), s 7(a), s 7(d), s 22, s 24
Interpretation Act 1984 (WA)
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Planning and Development Act 2005 (WA)
Result:
Leave to appeal granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | Mr M D Williams |
| Respondent | : | Ms A M Wood |
Solicitors:
| Appellant | : | Vogt Graham Lawyers |
| Respondent | : | Kott Gunning Lawyers |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27
Campbell v The State of Western Australia [2016] WASCA 156
Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84
Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102
Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1
Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51
Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473
Ianella v French [1968] HCA 14; (1968) 119 CLR 84
Interim Advance Corporation v Fazio [2008] WASCA 140
Investments (WA) Pty Ltd v City of Swan [2012] WASC 278
Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Mousell Brothers Ltd v London & North-Western Railway Co [1917] 2 KB 836
North Sydney Council v Moline; North Sydney Council v Tomkinson [No 2] [2008] NSWLEC 169
Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493
R v Australasian Films Ltd [1921] HCA 11; (1921) 29 CLR 195
R v Waine [2005] QCA 312; [2006] 1 Qd R 458
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Burke [No 3] [2010] WASC 110
Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561
Whincup v City of Mandurah [2017] WASC 89
HILL J:
This appeal principally concerns the proper construction of s 10 of the Building Act 2011 (WA) (Building Act). In broad terms, demolition work was carried out on the appellant's property without a demolition permit having been obtained. It was not in dispute that the demolition was done by a third party who the appellant had retained and not by the appellant.
On 12 September 2018, the learned magistrate convicted the appellant after trial of contravening s 10 of the Building Act. The appellant was fined $5,000 and ordered to pay the costs of the respondent in the sum of $11,342.00. The learned magistrate made a spent conviction order.
The appellant seeks leave to appeal from its conviction.
Notice of appeal and leave to appeal
The appellant filed its notice of appeal on 10 October 2018. The appeal was brought within time.[1]
[1] Criminal Appeals Act 2004 (WA), s 10(3).
There are four grounds of appeal in the notice of appeal dated 10 October 2018, namely that:
1.The learned magistrate erred in fact in concluding that the approval document from the Western Australian Planning Commission warned the appellant that it 'needed to' obtain approval from the local government prior to commencing demolition work.
2.The learned magistrate erred in law by failing to consider a defence of honest claim of right pursuant to s 22 of the Criminal Code (WA).
3.The learned magistrate erred in law by attributing criminal responsibility to the appellant pursuant to s 7(a), alternatively 7(d) of the Criminal Code (WA).[2]
4.Alternatively, the learned magistrate erred in law by failing to consider a defence of mistake of fact pursuant to s 24 of the Criminal Code (WA).
[2] The appellant was given leave at the hearing on 12 June 2019 to amend its notice of appeal to include the words 'alternatively 7(d)'; ts 9.
The appellant requires leave to appeal.[3] Leave to appeal must not be given unless the ground has a rational and logical prospect of succeeding.[4]
[3] Criminal Appeals Act, s 9(1).
[4] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
On 5 December 2018, Acting Justice Strk ordered that the application for leave to appeal be heard together with the appeal.
Factual background
Much of the evidence in this matter was not in dispute between the parties before the learned magistrate, nor is it disputed on appeal.
The appellant is a duly incorporated company with one director, Mr P.[5] The appellant is the registered proprietor of 338 Holmes Road, Forrestfield being Lot 9 on Diagram 18794 and contained in Certificate of Title Volume 1177, Folio 62 (Property).[6] The Property is within the Shire of Kalamunda.[7]
[5] Statement of Material Facts, par 6, Attachment 2.
[6] Statement of Material Facts, par 5, Attachment 1.
[7] Statement of Material Facts, par 7.
On 7 September 2015, the appellant submitted an application to the Western Australian Planning Commission (WAPC) for a proposed survey‑strata plan in relation to the Property.[8]
[8] Statement of Material Facts, par 8.
On 3 December 2015, the Shire of Kalamunda received notification from the WAPC that it was prepared to endorse a survey-strata plan in accordance with the application once the conditions set out in the notice had been fulfilled.[9] The conditions included (as condition 2):[10]
Other than buildings, outbuildings and/or structures shown on the approved plan for retention, all buildings, outbuildings and/or structures present on the proposed lots and common property at the time of subdivision approval being demolished and materials removed from the lot(s). (Local Government)
[9] Statement of Material Facts, par 9.
[10] Statement of Material Facts, Attachment 3.
The notification also included the following statement:[11]
Advice:
1.In regard to Condition 2, planning approval and/or a demolition licence may be required to be obtained from the local government prior to the commencement of demolition works.
[11] Statement of Material Facts, Attachment 3 (p 5).
On 14 December 2015, Mr P engaged Mr R to undertake the subdivision of the property.[12]
[12] ts 19.
On 12 August 2016, the Senior Building Surveyor of the respondent received a telephone enquiry from a member of the public asking the name of the demolition company carrying on demolition works at the Property. The Senior Building Surveyor checked the records of the respondent and found that no demolition permit had been issued.[13]
[13] Statement of Material Facts, par 11.
On 12 August 2016, the Senior Building Surveyor conducted a site inspection of the Property and saw that demolition of the residence and one of the outbuildings had occurred.[14]
[14] Statement of Material Facts, par 12, Attachment 5.
On 15 September 2016, Mr P spoke with the Senior Building Surveyor of the respondent. He stated that:[15]
(a)the demolition contractor who carried out the demolition works at the Property was Mr R;
(b)he had no idea that Mr R had undertaken the demolition works without the necessary approvals; and
(c)he had trusted Mr R to get the applicable approvals.
[15] Statement of Material Facts, par 15.
Following this discussion, Mr P sent an email to the respondent confirming this position.[16]
[16] Statement of Material Facts, par 16, Attachment 7.
On 21 September 2016, the appellant was charged with contravening 's[ection] 10 of the Building Act 2011 by doing demolition work without a demolition permit being in effect for the demolition work.'[17]
[17] Prosecution Notice filed 10 October 2019
The matter was listed before the learned magistrate for hearing on 5 April 2018. The prosecution tendered a statement of material facts together with a number of annexures. The defence did not seek to cross-examine or otherwise test any of this evidence.
At the conclusion of the prosecution case, the appellant made a no case submission on which the learned magistrate reserved his decision. On 16 May 2018 the learned magistrate delivered his reasons dismissing the appellant's no case application. The appellant then called Mr P and Mr R to give evidence, after which the parties gave their closing submissions. At the conclusion of the hearing, the learned magistrate reserved his decision.
On 12 September 2018, the learned magistrate delivered his reasons for decision in which he found the charge against the appellant was proven.
Appellant's evidence at trial
As noted above, the appellant called two witnesses to give evidence in its defence: its director, Mr P, and the party who carried out the demolition work, Mr R.
Mr P's evidence was that he had worked with Mr R on a number of development projects.[18] In relation to the previous projects, Mr P could not recall whether he had been required to sign applications for demolition permits and believed that this had not been required under the previous legislation.[19]
[18] ts 20 - 21.
[19] ts 20 - 21.
In respect of this project, he engaged Mr R:[20]
[T]o go through the approval to determine what might be required, and make any inquiries and investigations that might be needed in regard to that. He would then report to me everything that needed to be done, and then he would proceed to do it.
[20] ts 20.
Mr P was asked what, if anything, he did in relation to obtaining a demolition licence, to which he responded:[21]
I didn't do anything in regard to any of it. I just left Mr [R] to work through whatever was needed. If there was ever some form that needed to be signed, then he would bring that to me to be signed. Usually, there isn't.
[21] ts 22.
Mr P gave evidence that he did not instruct Mr R to do any work at the property without the necessary permits[22] and was not aware whether a demolition permit had been obtained.[23] He lived close by the Property and 'went past one day and noticed that works had started'.[24] The first time Mr P became aware that these works had been done without a permit was when he received the prosecution notice.[25]
[22] ts 22.
[23] ts 22.
[24] ts 23.
[25] ts 23.
In cross-examination, Mr P acknowledged that he had not spoken to Mr R about whether he had obtained a demolition permit as he 'just assumed that if it was necessary he [Mr R] had.'[26] He also acknowledged that he hadn't been given any forms to sign by Mr R and had not signed any forms.[27] He gave evidence that he had previously signed an application for a demolition licence on a previous development 'because the person who did the demolition work made me do the paperwork',[28] whereas Mr R 'would do everything for me'.[29]
[26] ts 28.
[27] ts 28 - 29.
[28] ts 24.
[29] ts 24.
Mr R's evidence was that he was engaged by Mr P to assist with the subdivision of the Property.[30] He recalled being provided with a copy of the WAPC approval and reading through the approval.[31] After reading the approval, he contacted the council and discussed the approval. He was told that any discussions in relation to planning needed to be with a planning officer.[32] On a date between late March and early May 2016, he spoke with the planning officer of the respondent who told him that 'there's no applications required for any items to be carried out in accordance with the WAPC approval'[33] and that they had an exemption under the Planning and Development Act 2005 (WA) s 157 (PD Act). He deposed that he did not discuss demolition permits with Mr P at any stage because he understood he was exempted from requiring one.[34]
[30] ts 32 - 33.
[31] ts 33.
[32] ts 34.
[33] ts 36.
[34] ts 36, 43.
In cross-examination, Mr R described the agreement between him and the appellant as a consultancy agreement.[35] He deposed that during the consultancy he spoke to Mr P 'as and when required'.[36] He stated that he did not tell Mr P that he was commencing demolition or that the demolition had started or give him regular progress reports.[37]
[35] ts 43.
[36] ts 44.
[37] ts 44.
Prosecution case at trial
The prosecution case against the appellant at trial opened on the basis that the prosecution relied on s 7(d) of the Criminal Code (WA) (Code). That is, the prosecution asserted that the appellant had procured the commission of the offence in that the appellant wanted the demolition to be carried out and this occurred without a permit as required under s 16 of the Building Act.[38] As such, the appellant had knowledge of the essential facts which constituted the unlawful act.
[38] ts 9.
The prosecution submitted that it was not possible to contract out of the statutory requirement to obtain a demolition permit. In this case, there was no evidence that the accused had been informed by Mr R that a demolition permit was not required and, accordingly, the accused should be convicted of the offence.
Accused's case at trial
The accused confirmed in closing that it was responding to a case by the prosecution that liability should be attributed to it pursuant to s 7(d) of the Code as a party who had procured the commission of the offence and not as a principal offender under s 7(a) of the Code.
The accused accepted that s 10 of the Building Act was a strict liability offence and that the demolition work was done at the Property without a permit. The accused denied knowing that no permit was in place. Counsel for the accused at trial submitted that this (knowledge that no permit had been obtained) was an element which the prosecution had to prove beyond a reasonable doubt.
After hearing closing submissions from the parties, the magistrate indicated the parties could file written submissions as to whether the appellant was a principal offender under s 7(a) of the Code.[39] The prosecution filed written submissions on 6 August 2018 and the accused filed submissions on 7 September 2018 addressing this matter.
[39] ts 56 - 63.
Reasons of the learned magistrate
On 12 September 2018, the learned magistrate delivered the following reasons for his decision:[40]
[40] ts 66 - 69.
The defence and the prosecution have decided to conduct the prosecution case on the papers and – that is, the defence have conceded a number of paragraphs to the document entitled 'Shire of Kalamunda statement of material facts' and they were, from memory, 5 to 17. It's the Shire's contention that these concessions amount to proof beyond a reasonable doubt that the accused committed the offence he was charged with – or it was charged with. The concessions prove that the accused company is the owner of the land and that it applied for and received an endorsement to proceed with a survey strata plan.
Part of the plan involved the demolition of structures present on the property. The company was warned in the same planning approval document that it needed to obtain approval from local government prior to commencing demolition work. The company director is [P]. He didn't develop the zone himself; he just hired a consultant, [R], to develop the site and oversee work. Mr [R] held a belief he didn't need a demolition licence for this job and he was exempted because of his belief about the operation of section 157 of the Town Planning Act and – Town Planning (indistinct). (sic)
Mr [R] demolished buildings on the development site without a licence because of this belief. He later pleaded guilty to the same offence that the accused company is charged with. He says, and this court accepts, th[at] he didn't speak to Mr [P] about this mistaken belief or about demolishing the buildings. The first time Mr [P] and Mr [R] spoke about the demolition was when Mr [P] received his infringement. So they're the background facts in this trial ...
It's not disputed the accused is the registered proprietor of 338 Holmes Road and that the property is in Kalamunda Shire. Nor is it disputed that the accused company applied for and was granted the endorsement of a survey strata plan. Certainly, it's not disputed that an agent consultant or – you know, engaged the company – engaged by that company demolished a residence and an out building. 'Demolition work' is defined in the Building Act as meaning, amongst other things, section 3, as: The demolition, dismantling or … removal of a building or an incidental structure.
It's accepted by the defence that this occurred on the date alleged in the prosecution notice, which is, namely, 12 August 2016. It's also conceded that no demolition permit was sought or granted and particularly not granted by the Shire pursuant to section 21 of the Building Act. The Act that creates the offence also provides offences under section 11 or 12.
Both prosecution and defence accept the offence is one of strict liability. A company, of course, is a piece of paper with something written on it. It can only operate throughout its officers and its agents. Mr [P] himself isn't charged with the commission of this offence. He may well avail himself of a defence under section 180 of the Criminal Procedure Act, but there's no such provision around for the corporation.
The Crown opened its case at the commencement of the trial on the basis that the company was a party to the offence pursuant to section 7(d) and, in particular, that it was – its guilt lay through counselling or procuring, which is one of the, sort of, subsets of 7(d). Mr [P] sought a no case to answer dismissal of the charge on the basis that the accused company had no knowledge or intent of the demolition by the secondary participant. [I] objected to the no case submission on the finding that the accused was a principal offender, which probably took them both by surprise.
But after hearing all of the evidence, I'm still of the view that the accused company is the principal offender. A company can only ever act through its officers or agents. It's the owner of the land – the company is, the applicant for the strata survey plan, the entity responsible for carrying out all aspects of the survey plan, including compliance with any statutory requirement and an omission to obtain a demolition licence is the omission of the entity whose responsibility it is to obtain a licence.
Should an agent of the company's officer neglect to obtain a licence, it's still an omission of the company. Mr [P] submitted that as the prosecution opened on the basis the company was liable through section 7(d) and he had prepared his case on that basis and it would be unfair to convict on any other. I don't accept that proposition either. The defence has conceded all of the facts necessary for the Shire to prove its case. The facts were relied upon by the Shire when it opened its case. They remain exactly the same at the end of the Crown case.
The characterisation of liability pursuant to section 7(d) was a submission by the Shire only. The court is not bound by a prosecutor's opening submission as to the effect of a law. I'm bound, of course, by the way in which the facts are characterised. The same facts as opened on prove the liability of the accused. There has been no change of course. With respect to Mr Perrella, he has been unable to demonstrate any prejudice suffered by the court's characterisation of his accused as a principal offender. He had not yet called his witnesses at the time he said this.
He sought no adjournment. He said – simply asserted that he was responding to an argument that his client was guilty to one section rather than another subsection and the prosecution was bound – provided no circumstance, however, to the court, that demonstrated some unfair consequence to his client company. So I'm not of the opinion that any defence has been raised fairly on the facts. By defence, I mean anything that justifies or excuses the omission.
The obtaining of a demolition licence is a statutory requirement unmet by the company. Of course, ignorance of the law by an officer of the company is no excuse. The corporate applicant for a survey strata plan can't cont[r]act out of its obligation to obtain a demolition licence prior to carrying out demolition work. Instructed Mr [R] to, amongst other things, demolish those buildings and didn't get a licence for it. So I find the charge against the company proven.
Before turning to the grounds of appeal, it is necessary to consider the proper construction of s 10 of the Building Act and the statutory background of this Act.
Statutory background
Section 10 of the Building Act provides that:
A person must not do demolition work unless -
a)a demolition permit is in effect for the demolition work; or
b)the demolition is incidental to building work comprising the renovation, alteration, extension, improvement or repair of a building or an incidental structure, and a building permit is in effect for the building work; or
c)a demolition permit is not required for the demolition work under Part 5 or regulations or an order mentioned in Part 5 Division 1; or
d)the work is done in accordance with a building order; or
e)the work is done in the course of taking action under section 118(2).
Penalty:
(a)for a first offence, a fine of $50 000;
(b)for a second offence, a fine of $75 000;
(c)for a third or subsequent offence, a fine of $100 000 and imprisonment for 12 months.
Section 11 and s 12 of the Building Act set out defences to this section, neither of which are relevant on the facts of this matter.
Section 15 of the Building Act provides that a person may apply for a demolition permit to do demolition work or one or more stages of demolition work in respect of a building or incidental structure.
'Demolition permit' is defined as a permit granted under s 21 of the Building Act.[41] Section 21 of the Building Act sets out the matters which must be satisfied in order for a demolition permit to be granted. It includes a requirement that the applicant for the permit comply with the Building Act s 16.[42]
[41] Building Act, s 3.
[42] Building Act, s 21(1)(a).
Section 16 of the Building Act requires, inter alia, that an application must be made in an approved manner and form,[43] must name and be signed by each owner of the land,[44] and must name and be signed by the person who proposes to be named as the demolition contractor on the demolition permit.[45] Where the demolition permit is granted, the permit must be given, inter alia, to the demolition contractor,[46] each owner of the land[47] and the applicant for the permit (if this is a different party).[48]
[43] Building Act, s 16(a).
[44] Building Act, s 16(b).
[45] Building Act, s 16(c).
[46] Building Act, s 28(2)(a).
[47] Building Act, s 28(2)(b).
[48] Building Act, s 28(2)(c).
Section 29 of the Building Act deals with compliance with the demolition permit in the following terms:
The person named as the demolition contractor on a demolition permit must ensure that the demolition work complies with the demolition permit including each condition that applies to the permit.
The Building Act also imposes an obligation on the 'person named as the demolition contractor' to ensure the demolition permit is adequately displayed[49] and complies with the applicable building standards.[50]
[49] Building Act, s 30(1).
[50] Building Act, s 38(1).
Amendments to the Building Act in 2012 included amendments to s 67, which authorises the Minister to order an exemption to the requirement for an owner to sign the application for a demolition permit.
To date, there has been no judicial consideration of s 10 of the Building Act.
Prior to the enactment of the Building Act, the regulation of building, including any demolition works, was governed by the Local Government (Miscellaneous Provisions) Act 1960 (WA). Demolition licences (as they were then called) were required before any 'person shall commence' to take down a building or part of a building.[51] There is no relevant judicial consideration of that section which assists the determination of the issues in this matter.
[51] Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374A(1).
The Explanatory Memorandum for the Building Act states that the purpose of the Building Act is to set out the 'process of setting building standards and ensuring these standards are met through a system of … granting building, demolition and occupancy permits'.[52]
[52] Explanatory Memorandum Building Bill 2010, p (i).
Specifically, in relation to s 10, the Explanatory Memorandum stated that:[53]
10(a) specifies that demolition permits are required to demolish a building or part of a building. This follows the same logic as the requirement for building permits under clause 9 and also places the onus on owners, subcontractors, specialist contractors and the like to ensure that a demolition permit, where required, has been issued before starting work.
[53] Explanatory Memorandum Building Bill 2010, p 4.
I note that there were no material changes to this section during the passage of the legislation.
Proper construction of s 10 of the Building Act
The starting point in considering the meaning of s 10 of the Building Act is to consider the ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose.[54] Extrinsic materials can be considered to confirm the ordinary meaning conveyed by the text of the provision, or to determine the meaning of a provision where the provision is ambiguous or obscure, or where the ordinary meaning gives rise to a result that is manifestly absurd or unreasonable.[55]
[54] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [4].
[55] Interpretation Act 1984 (WA), s 19(1).
The approach to statutory construction was summarised by Buss JA (as he then was) in Caratti v Mammoth Investments Pty Ltd as follows:[56]
The modern approach to statutory construction is purposive. The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision.
The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed.
The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. (footnotes omitted)
[56] Caratti v Mammoth Investments Pty Ltd [2016] WASCA 84; (2016) 50 WAR 84 [390] - [392].
The issue in this case is whether an offence under s 10 of the Building Act can only be committed by the person who actually does the demolition work or whether other parties, in particular the owner of the land, can be liable under this section. This will occur where the section makes the owner vicariously liable for the acts of its agents or contractors, or the legislature intended that the obligation is a non‑delegable duty imposed on the owner.
In Mousell Brothers Ltd v London & North‑Western Railway Co, Aitken J stated:[57]
I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.
[57] Mousell Brothers Ltd v London & North-Western Railway Co [1917] 2 KB 836, 845.
This statement was approved by the High Court in R v Australasian Films Ltd.[58]
[58] R v Australasian Films Ltd[1921] HCA 11; (1921) 29 CLR 195, 214.
The concept of 'vicarious liability' has been applied to criminal offences of strict liability to make a company vicariously responsible for the acts of its employees. The cases, however, draw a distinction between the acts of employees and the acts of independent contractors.
A party accused will generally not be vicariously liable for the conduct of its independent contractors.[59] This is subject to the following exceptions:
(a)where the principal directly authorised the relevant act;[60]
(b)where the principal engages the independent contractor to exercise a duty of the principal and the independent contractor failed to do so; or
(c)where the principal failed to exercise reasonable care in choosing a competent independent contractor.[61]
[59] Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102 [92].
[60] Environment Protection Authority v Multiplex Constructions Pty Ltd [2000] NSWLEC 6; (2000) 112 LGERA 1 [278].
[61] Environment Protection Authority v Multiplex Constructions Pty Ltd [296].
A party may also be vicariously liable for the acts of an independent contractor where the execution of the work is subject to their control or direction.[62] Control includes the power to decide what must be done, the manner in which it will be performed, as well as the time and place where it will be performed.[63] If a party is able to transfer and does in fact transfer authority for the execution of the work to another party, the party will not be vicariously liable for the acts of their independent contractor.[64]
[62] North Sydney Council v Moline; North Sydney Council v Tomkinson [No 2] [2008] NSWLEC 169 [114] (Preston J).
[63] Environment Protection Authority v Snowy Mountains Engineering Corporation Ltd (1994) 83 LGERA 51, 55 (Talbot J).
[64] Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, 692 (Brennan J).
In relation to the concept of a non‑delegable duty, Lloyd J in Environment Protection Authority v Multiplex Constructions Pty Ltd stated:[65]
[65] Environment Protection Authority v Multiplex Constructions Pty Ltd [294] - [300].
The concept of a non-delegable duty is, like vicarious liability, a child of tort. As with vicarious liability, it is, I think, necessary to consider the nature of the duty and the circumstances which must exist to give rise to such a duty.
A principal will be liable for the negligence of an independent contractor if either:
a)the principal failed to exercise reasonable care in choosing a competent independent contractor; or
b)the principal is under a non-delegable duty.
A non-delegable duty is one which cannot be renounced or delegated. A non-delegable duty is a higher, more stringent personal duty to ensure that reasonable care is taken. In many situations, an employer's duty of care does not extend beyond the general common law duty to exercise reasonable skill and care in engaging employees and contractors or in supervising work conditions or methods. The common law duty will usually be met by engaging a competent contractor to perform certain work which requires a specific skill or expertise which the employer does not have. In other situations a principal will have a wider personal duty to use reasonable care. Such a duty cannot be delegated to either an employee or to an independent contractor.
The classes of case in which a non-delegable duty may arise are not closed. It is clear, however, that there must be a particular relationship between the parties whereby it is appropriate to impose the duty, such a relationship usually involving the key elements of control or supervision as having been undertaken by the principal. In Burnie Port Authority v General Jones Pty Ltd, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said (at 550):
It has long been recognised that there are certain categories of case in which a duty to take reasonable care to avoid a foreseeable risk of injury to another will not be discharged merely by the employment of a qualified and ostensibly competent independent contractor.
…
The duty may arise notwithstanding that the person who has been engaged is an independent contractor for whom the person owing the duty would not be vicariously liable. (citations omitted)
The appellant submitted that the purpose of s 10 of the Building Act was to ensure that the person who carries out the demolition work complies with the applicable conditions and requisite standards. The appellant's contention was that on a proper construction of the Building Act, s 10 did not impose a non‑delegable duty on the owner of the land.
The respondent submitted that the intent of the Building Act was to impose a requirement on owners as well as contractors to ensure that demolition permits have been issued before any work occurs. On this basis, the respondent contended that s 10 of the Building Act imposed a non‑delegable duty on the owner to ensure that a demolition permit was obtained and that, in addition, the owner was vicariously liable for the acts of its agents and subcontractors.
In my view, s 10 of the Building Act does not impose a non‑delegable duty on the owner of the land. The statute does not impose liability on a party by reason of that party's status as an occupier of land or holder of a licence. Rather, the parties on whom the section imposes liability are not limited to a particular class of persons. In addition, the section does not generate a special responsibility or particular duty on the owner to ensure that a demolition permit is issued.
However, for the following reasons, I consider that the doctrine of vicarious liability applies to prosecutions under s 10 of the Building Act. First, the object or purpose of the Building Act is, inter alia, to ensure that all building and demolition work is done in accordance with the terms and conditions of permits issued under the Act. Second, the purpose of s 10 of the Building Act is to ensure that demolition does not occur without a demolition permit having first been obtained. The primary duty of ensuring this is done will usually be on the owner of the land. To convict the person who carried out the demolition will, in part, achieve the purpose of this section. However, in my view, in order to ensure that the statutory purpose is fulfilled, it is necessary for owners to be vicariously liable for the acts of their employees and agents. Third, in most circumstances, the owner of the land will not be the person that actually carries out the building or demolition work; they will retain third party contractors to carry out this work on their behalf. Fourth, once a demolition permit has been obtained, s 29 of the Building Act makes plain that any breach is the responsibility of the demolition contractor and not the owner. This is in contrast to the language used in s 10 of the Building Act.
For these reasons, it is my view that an owner of land is vicariously liable for the acts of its agents or subcontractors acting within the scope of their engagement in respect of s 10 of the Building Act.
Having reached this conclusion, I now turn to consider the grounds of appeal and the specific facts of this matter.
Disposition of appeal
I have dealt with the grounds of appeal in the order in which they were argued.
Ground 3 - Criminal responsibility of the appellant
As noted above, the prosecution opened its case before the learned magistrate on the basis that the appellant was liable as a party who procured the commission of the offence.
Prior to the learned magistrate convicting the appellant of the charge, the parties were given an opportunity to file written submissions. In its submissions, the respondent confirmed that it had conducted its case on the basis of s 7(d) of the Code, that is, it asserted the accused had procured the doing of the demolition works. The respondent submitted that the accused was liable as a principal offender under s 7 of the Code and not as a secondary offender under s 8 of the Code.
The appellant confirmed that it had defended the trial on the basis that the sole assertion by the prosecution was that it had procured the commission of the offence, pursuant to s 7(d) of the Code. The appellant objected to any liability being imposed on it pursuant to s 7(a) of the Code.
Notwithstanding these submissions, the learned magistrate did not accept that he was bound by the way that the prosecution opened its case and stated specifically that:[66]
The characterisation of liability pursuant to section 7(d) was a submission by the Shire only. The court is not bound by a prosecutor's opening submission as to the effect of a law.
[66] ts 68.
I note that the appellant did not specifically raise an objection on the appeal in its oral or written submissions that it was convicted on a basis that had not been contended by the prosecution.
The learned magistrate found that the obligation in s 10 of the Building Act was a non‑delegable duty which the company could not contract out of.[67] As a consequence, his Honour held that the failure to obtain a demolition permit prior to commencing demolition was a failure by the appellant. It is clear from his reasons for decision that his Honour considered the appellant's liability arose under s 7(a) of the Code.
[67] ts 69.
For the reasons set out above, I consider that the learned magistrate erred as a matter of law in finding that the obligation in s 10 of the Building Act was a non‑delegable duty. In my view, the only basis upon which the appellant could be convicted of an offence under s 10 of the Building Act is if the appellant is vicariously liable for the acts of Mr R (under s 7(a) of the Code) or if the appellant procured the commission of the offence (under s 7(d) of the Code).
Despite an error of law having been identified by the appellant, this court can still dismiss the appeal if, despite this error, no substantial miscarriage of justice has occurred.[68] For this reason, it is necessary for me to consider whether, on the evidence before the learned magistrate, the appellant could have been convicted of a breach of s 10 of the Building Act.
[68] Criminal Appeals Act 2004 (WA), s 14(2).
Section 7 of the Code provides that:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
a)every person who actually does the act or makes the omission which constitutes the offence;
b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
c)every person who aids another person in committing the offence;
d)any person who counsels or procures any other person to commit the offence.
In the fourth case he may be charged either with himself committing the offence or with counselling or procuring its commission.
A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.
Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission.
In relation to s 7(d) of the Code, it is trite that 'counselling' and 'procuring' are different concepts. The Court of Appeal in Campbell v The State of Western Australia explained the difference in the following terms:[69]
Counselling involves the accused encouraging, urging, advising or soliciting another person to commit the offence. Procuring involves the accused enabling or facilitating the commission of the offence by another person. (citations omitted)
[69] Campbell v The State of Western Australia [2016] WASCA 156 [118].
A party procures the commission of an offence if they cause it to be committed, they persuade the principal offender to commit it, or they bring about its commission. It is necessary to establish a causal connection between the commission of the offence and the conduct of the procurer. That is, it is necessary to show that the party intends that the acts which constitute the offence be committed.[70]
[70] The State of Western Australia v Burke [No 3] [2010] WASC 110 [19] - [21].
The principles governing the liability of a secondary participant in the commission of an offence were summarised by the High Court in Giorgianni v The Queen as follows:[71]
(a)to establish secondary participation in the commission of a strict liability offence, it is necessary to prove the secondary participant had actual knowledge of all of the essential facts of the offence;
(b)actual knowledge must be proved and not knowledge which is imputed or presumed;
(c)aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence;
(d)this intent will be absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about to do something which amounts to an offence; and
(e)it is not necessary to show that the secondary participant knew what was done was an offence, because ignorance of the law is not a defence, but it must be shown the secondary participant knew what the principal offender was doing.
[71] Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 504 ‑ 505 (Wilson, Deane & Dawson JJ).
The appellant submitted there was no evidence that the appellant counselled or procured the offence as:
(a)the appellant 'instructed Mr [R] to undertake subdivision works at the Property in a lawful manner some eight months before the works occurred';[72]
(b)the appellant hired Mr [R] as its project manager to do all things lawfully necessary to subdivide the Property.[73]
[72] Appellant's submissions, par 40.
[73] Appellant's submissions, par 41.
The respondent submitted that the appellant procured the commission of the offence as the demolition work would not have been carried out by Mr R without the appellant engaging him and paying him for his work. In particular, the respondent relied upon the following matters:
(a)the appellant did not take steps to obtain a demolition permit or ascertain whether one had been obtained;
(b)the appellant knew that an owner or an authorised delegate was required to sign the permit;
(c)the appellant knew that demolition had commenced but took no steps to stop the demolition.
The respondent submitted that it was sufficient for them to prove that the appellant intended the act of demolition be carried out and that it was not necessary to prove that the appellant was aware that the demolition permit had not been obtained.
In determining whether the appellant is vicariously liable for the acts of the respondent (and therefore liable under s 7(a) of the Code) or whether the appellant procured the breach (and therefore liable under s 7(d) of the Code), it is necessary to consider the findings of fact made by the learned magistrate and what the evidence before him was.
The learned magistrate relevantly found that:[74]
(a)the appellant hired a consultant to develop the site and oversee work;
(b)the consultant, Mr R, believed that he did not need a demolition permit because the exemption in s 157 of the PD Act applied;
(c)the demolition occurred as a consequence of this belief;
(d)the consultant did not speak to the director of the appellant about this belief or his intention to commence demolition of the buildings;
(e)the first time that the appellant and consultant spoke about the demolition was when the appellant received the infringement notice.
[74] ts 66 - 67.
No findings were made by the learned magistrate as to the terms of the consultancy agreement. The appellant's evidence was that Mr R was engaged to go through the approval, work out what needed to be done (including making any inquiries and investigations), report back to the appellant on what needed to be done,[75] bring to the appellant any forms that needed to be signed,[76] and then proceed with the work.[77]
[75] ts 20.
[76] ts 22.
[77] ts 20.
The appellant did not sign any document which gave Mr R the authority to lodge applications on his behalf.[78] The appellant's evidence was that he did not speak to Mr R to understand whether permits were required.[79]
[78] ts 28 - 29.
[79] ts 28.
It is clear from this evidence that the appellant had not transferred to Mr R the responsibility of carrying out all work associated with the sub‑division. The appellant expected Mr R to report back to him on what was required to be done and to bring to him all forms that needed to be signed. In my view, this included any application for a demolition permit that was required under s 10 of the Building Act.
As the appellant had not transferred to Mr R the obligation to obtain a demolition permit before carrying out work, in my view, the appellant is vicariously liable for the acts of Mr R in carrying out demolition work without a permit in breach of s 10 of the Building Act.
Accordingly, notwithstanding the error of law by the learned magistrate, the appellant should still have been convicted of a breach of s 10 of the Building Act. For this reason, I do not consider there has been any substantial miscarriage of justice.
Given this finding, it is unnecessary for me to consider whether the appellant could also have been convicted as procuring the offence under s 7(d) of the Code. For completeness, it is my view that the conviction of the appellant could have been upheld as a party who procured the commission of the offence by Mr R.
When a person is charged as a secondary party with an offence under s 10 of the Building Act relying on s 7(d) of the Code, the prosecution is required to prove that the accused counselled or procured the demolition works. It does not have to establish that the accused knew that a demolition licence had not been issued. Specifically, the prosecution is required to prove that the accused knew that demolition on the Property was contemplated, that the accused approved or assented to it and that this approval or assent encouraged the principal offender to undertake the demolition.
In this case, the prosecution has proved that the appellant was aware from the approved plans of the survey strata development that demolition of buildings was required,[80] that the appellant retained Mr R, the principal offender, to undertake the work on the Property, including the demolition,[81] and that by retaining Mr R to carry out the development, this caused Mr R to undertake the demolition works.[82]
Ground 1 - WAPC did not warn appellant that local government approval was necessary
[80] Statement of Material Facts, par 8 and 9; Attachment 3.
[81] ts 26.
[82] ts 32 - 33.
The respondent conceded that the learned magistrate erred as a matter of fact in finding that the WAPC approval warned the appellant that local government approval was necessary. This was, in my view, an appropriate concession which reflected the language of the WAPC letter.
The more significant issue is what, if anything, flows from this error of fact. As noted above, this court can still dismiss the appeal if, despite this error of fact, I consider that no substantial miscarriage of justice has occurred.[83]
[83] Criminal Appeals Act, s 14(2).
In my view, this finding of fact was not material to the conclusions reached by the learned magistrate in convicting the appellant nor is it a material fact in the reasons I have given for upholding the conviction of the appellant. In these circumstances, I do not consider there has been any substantial miscarriage of justice arising from this error.
Ground 2 - Honest claim of right
The appellant's defence of honest claim of right arises from the evidence by Mr R that he was advised by a representative of the respondent that a demolition permit was not required.[84] The appellant submitted that if this belief was correct, the demolition at the Property was not in breach of s 10 of the Building Act. Counsel for the appellant relies on this evidence as giving rise to the s 22 defence.
[84] ts 36.
No submission was made before the learned magistrate that the appellant had a defence under s 22 of the Code. The submissions before his Honour focussed on s 24 of the Code, namely, mistake of fact. It is apparent therefore, that the learned magistrate failed to consider a defence of honest claim of right because this defence was not raised by the appellant at trial. Notwithstanding this, if the evidence gave rise to a possible s 22 defence, the learned magistrate was required to consider this defence.[85]
[85] Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 [42] - [43].
For the purpose of considering this ground of appeal, I have accepted (without deciding) that a defence under s 22 is capable of application to an offence under s 10 of the Building Act.
Section 22 of the Code provides that:
Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by an offender is expressly declared to be an element of the offence.
But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.
The distinction between law and fact, between questions of law and questions of fact, and between mistakes of law and mistakes of fact is not as easy as might at first be expected.[86]
[86] Ianella v French [1968] HCA 14; (1968) 119 CLR 84, 114 ‑ 115.
In Walden v Hensler, Dawson J summarised what was meant by an honest claim of right as follows: [87]
It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner — to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law. (citations omitted)
[87] Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 592 ‑ 593 cited with approval in MacLeod v The Queen [2003] HCA 24; (2003) 214 CLR 230 [41].
An honest claim of right may be made not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property.[88] A person has an honest claim of right in respect of property if they honestly believe they are legally entitled to do what they are doing in relation to the property.[89] The claim must only be honest; it need not be reasonable. However, a claim that is unreasonable is less likely to engender a reasonable doubt.[90]
[88] Investments (WA) Pty Ltd v City of Swan [2012] WASC 278 [55].
[89] Interim Advance Corporation v Fazio [2008] WASCA 140 [78]; R v Waine [2005] QCA 312; [2006] 1 Qd R 458 [27] - [28].
[90] MacLeod v The Queen [42] cited with approval in Investments (WA) Pty Ltd v City of Swan [No 2] [2013] WASCA 251 [59].
In Ostrowski v Palmer, the High Court summarised the history and meaning of s 22 and s 24 of the Code in the following terms:[91]
Sections 22 and 24 must be read together. The reference in s 24 to a belief in the existence of a state of things must be, and can be, understood in the light of s 22, and of the common law principle reflected in ss 22 and 24. In a case such as the present, the key to such understanding is in Jordan CJ's reference to "the facts constituting the ingredients necessary to make the act criminal". Section 24 is not concerned with mistakes at large. In particular, it is not concerned with mistakes about whether there is a law against conduct of a certain kind. Section 24 requires that attention be directed to the elements of the offence charged, and to the facts relevant to those elements, understood in the wider sense explained at the commencement of these reasons. It requires identification of the act or acts alleged to constitute the offence, and consideration of the extent to which the accused would have been criminally responsible for such act or acts 'if the real state of things had been such as he believed to exist'. Section 24 applies to mistakes about the elements of the offence, not mistakes about the existence of the law creating the offence.
[91] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [10] (Gleeson CJ & Kirby J).
In this case, the appellant submitted that if the acts of the independent contractor were attributable to the appellant, the appellant should be able to rely on the belief of the independent contractor that he did not require a demolition licence to carry out demolition work on the Property.
The respondent relied on the finding by the learned magistrate that the advice that Mr R had obtained from the respondent's planning officer was not passed on by Mr R to the appellant. On this basis, the respondent submitted that the appellant had not discharged the onus[92] to adduce evidence which supports a defence under s 22 of the Code.[93]
[92] Whincup v City of Mandurah [2017] WASC 89 [117].
[93] Respondent's submissions, par 4.6
It is apparent that the appellant did not have any belief about whether the demolition works could be carried out without a licence. Accordingly, his evidence did not, in my view, amount to a claim that he or his agents were entitled to carry out demolition on the Property. In my view, for an accused to have a defence under s 22 of the Code, it is necessary for the accused to have an honest belief and not an imputed belief. For this reason, I do not consider that the evidence of the appellant discharged the onus to adduce evidence which supports a defence under s 22 of the Code. On this basis, the learned magistrate did not err in failing to consider a defence of honest claim of right.
Ground 4 - Mistake of fact
Section 24 of the Code provides that:
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
The appellant submitted that the appellant's independent contractor was under the honest, reasonable but mistaken belief that all relevant approvals had been obtained when they had not. The appellant submitted that this mistake was one of fact and not law[94] and that the belief of its contractor should be attributed to the appellant.
[94] Appellant's submissions, par 74.
The respondent submitted that the mistake was one of law and not fact. The respondent further submitted that there was no evidence that Mr R had informed the appellant of the nature of his conversations with the respondent that a demolition permit was not required. In considering this defence, the respondent contended that it was the belief of the appellant that was relevant; the view of Mr R could not be attributed to the appellant.
As noted above, in determining whether the mistake is one of fact or law, it is necessary to consider the elements of the offence.[95] In a prosecution under s 10 of the Building Act, it is necessary for the prosecution to prove three things: first, there is a person (either natural or, in this case, an incorporated body); second, demolition work was done; and third, none of the sub-paragraphs of s 10 applied to the work.
[95] Ostrowski v Palmer [10] (Gleeson CJ & Kirby J).
In considering this ground of appeal, it is necessary to determine with sufficient clarity the state of facts that the appellant considered to exist. It is then necessary to determine whether those facts are sufficient for an arguable defence on the basis of mistake of fact under s 24 of the Code.
In the context of this case, the following are the requirements of the defence of mistake of fact:
(a)the appellant considered, at or before the time of the conduct constituting the physical elements of the offence, whether or not certain facts existed. The conduct in question was the action of demolition. The physical element was that the demolition was done without a permit;
(b)the appellant did not know whether a demolition permit had been obtained or whether the demolition works could be carried out without a licence at the time of the conduct constituting the physical element of the offence;
(c)it was reasonable for the appellant to have this mistaken belief about those facts at the time of the conduct.
(d)had those facts existed, the conduct would not have constituted the offence for which the appellant was charged.
In my view, the appellant's conduct satisfied each of the elements of the offence. There was no mistake in relation to any of these elements. What the appellant did not know was that a demolition permit had not been obtained when one was required.
In my view, the question that must be asked, to apply the test stated by Gleeson CJ and Kirby J in Ostrowski v Palmer,[96] is if the demolition was done without knowledge that a demolition permit was required, would the appellant have been guilty or not guilty?
[96] Ostrowski v Palmer.
The answer to this question must be guilty. In my view, this mistake was a matter of law not fact.
In relation to the belief of the appellant's contractor, as noted above, the advice that Mr R received from the respondent's planning officer was not passed on to the appellant. It is apparent that the appellant did not have any belief about whether the demolition works could be carried out without a licence. Accordingly, his evidence did not, in my view, amount to a claim that he or his agents were entitled to carry out demolition on the Property. In my view, for an accused to have a defence under s 24 of the Code, it is necessary for the accused to have a mistaken belief and not an imputed belief.
If I am wrong in concluding that the belief of the appellant's contractor cannot be attributed to the appellant, I have considered whether a defence of mistake of fact would apply. In this case, the question that would need to be asked, to apply the test stated by Gleeson CJ and Kirby J in Ostrowski v Palmer,[97] is whether, if the demolition was done on the basis of a belief that a permit was not required because the work fell within the exemption under s 157 of the PD Act, the appellant would have been guilty or not guilty?
[97] Ostrowski v Palmer.
The answer to this question must, again, be guilty. In my view, the question as to whether the demolition work fell within an exemption or not was a matter of law not fact.
Conclusion
In my view, although the learned magistrate made an error of law in considering that s 10 of the Building Act imposed a non‑delegable obligation on the appellant and also made an error of fact as noted in [91] of these reasons, no miscarriage of justice has occurred as a result of these errors.
While I would grant leave to appeal, in these circumstances, the appeal should be dismissed pursuant to s 14(2) of the Criminal Appeals Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill11 OCTOBER 2019
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