Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 3)
[2005] NSWLEC 328
•02/07/2005
Land and Environment Court
of New South Wales
CITATION: Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 3) [2005] NSWLEC 328
PARTIES: Minister administering the Ports Corporatisation and Waterways Management Act 1995
Mick Bechara HakimFILE NUMBER(S): 50057 of 2004; 50058 of 2004
CORAM: Cowdroy J
KEY ISSUES: Practice and Procedure :- application for no case to answer - alleged breach of stop work order - whether stop work order complied with statutory requirements
LEGISLATION CITED: Interpretation Act 1987 ss 8(b), 33
Rivers and Foreshores Improvement Act 1948 ss 22B, 22DCASES CITED: Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority (1998) 194 CLR 355
DATES OF HEARING: 04/02/2005
DATE OF JUDGMENT:
02/07/2005EX TEMPORE JUDGMENT DATE: 02/07/2005
LEGAL REPRESENTATIVES: PROSECUTOR
DEFENDANT
I Hemmings
SOLICITOR
Baker & McKenzie
P Tomasetti
SOLICITOR
Storey and Gough
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESCowdroy J
7 February 2005
50057 of 2004
50058 of 2004MINISTER ADMINISTERING THE PORTS CORPORATISATION AND WATERWAYS MANAGEMENT ACT 1995
ProsecutorJUDGMENT NO 3 (INTERLOCUTORY)MICK BECHARA HAKIM
Defendant
1 His Honour: In proceedings number 50058 of 2004 the defendant is charged with an offence, namely that he committed an offence against the Rivers and Foreshores Improvement Act 1948 (“the Act”) in that between 3 February 2004 and 7 February 2004 at Chiswick in the State of New South Wales he failed to comply with a stop work order contrary to s 22D(1) of the Act (“the order”).
2 The prosecution has closed its case and the defendant applies to enter a verdict by direction in the defendant’s favour on the ground that there is no case to answer. The defendant submits that the order was issued in excess of the prosecutor’s power under s 22D of the Act which relevantly provides:-
(1) If the Constructing Authority is satisfied that a person is contravening, or is about to contravene, section 22B, the Constructing Authority may, by written notice given to the person, order the person not to engage in that activity.
(2) The order takes effect immediately or from a later time specified in the notice and is subject to such conditions as the Constructing Authority may specify in the order.
(4) An order under this section remains in force until one of the following happens:…
(a) the order is revoked by the Constructing Authority,
(c) a period of 3 months elapses (being a period that commences on the day on which the order takes effect).(b) the period (if any) for which the order is expressed in the notice to be in force elapses,
Defendant’s submissions
3 The defendant claims that the order is invalid upon four grounds as set out hereunder:-
Failure to nominate the person
4 The defendant submits that contrary to the requirements of s 22D(1) the prosecutor has failed to nominate “the person” in the order. The order relied upon by the prosecutor is addressed to M & Y Hakim. The defendant submits the Act requires “a person” to be nominated, not persons.
Categorisation of Work
5 The order provides as follows:-
The Waterways Authority order you, your agents and contractors to stop all works within 40 metres of the Mean High Water Mark (MHWM) for the land 10 Fortescue Street, Chiswick.
6 The defendant submits that under s 22D(1) the prosecutor may only require the cessation of work of the description referred to in s 22B(1), namely excavation, removal of material and anything which obstructs or detrimentally effects the flow of protected waters or which is likely to do so. It submits that s 22D(1) does not authorise the issue of an order requiring “all work” to cease and in so doing the order is beyond power and therefore invalid.
Temporal Operation of Notice
7 The defendant submits that by virtue of s 22D(1) and s 27, the order was required to be served and could only take effect from the time of service, namely 5 February 2004. The defendant says that since the order specifies a date for its operation, namely 3 February 2004, which precedes that of service, the order is invalid.
Duration of Order
8 The defendant submits the prosecutor has exceeded its powers in purporting to extend the duration of the order beyond the period provided by s 22D(4). Pursuant to s 22D(4)(c) the maximum duration of an order is three months. The order states:-
The order remains in force until such time that a part 3A permit under the Rivers and Foreshores Improvement 1948 has been issued by the Waterways Authority. The breaching of a stop work order is a criminal offence.
Prosecutor’s submissions
9 The prosecutor submits that each of the matters relied upon by the defendant to the challenge the validity of the order is a matter of form over substance. The prosecutor relies upon s 33 of the Interpretation Act 1987, which provides that in the interpretation of any Act or statutory rule, a construction is to be adopted that would promote the underlying purpose or object in preference to a construction, which did not achieve that purpose or object.
Failure to Nominate the Person
10 The prosecutor submits that the order did not need to be addressed to a single person. It relies upon the provision of s 8(b) of the Interpretation Act 1987 which provides:-
8. In any Act or instrument:
…
(b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form.
11 The prosecutor submits further, that there is no substance to the defendant’s submission since the evidence establishes that the defendant received the order.
Categorisation of Work
12 The prosecutor submits that an order under s 22D may relate to work other than that referred to in s 22B. Such order is not restricted to work which constitutes an existing contravention of s 22B(1). The words “about to contravene” in s 22D(1) suggests that the work to be restrained by the order may be more extensive than work actually causing a contravention of s 22B(1).
Temporal Operation of Notice
13 The prosecutor submits that a distinction is to be drawn between the time when an order is to take effect and the time when a defendant could be guilty of an offence for failing to comply with the order. No invalidity can arise once this distinction is recognised.
Duration of Order
14 The prosecutor submits that the order is valid irrespective of the unlimited duration specified therein. The order will cease to have effect at the end of three months by virtue of s 22D(4)(c).
Findings
15 The Court observes that the Act does not contain a prescribed form to be used by the prosecutor when exercising power under s 22D(1). Accordingly the prosecutor may formulate the order in the form which it considers appropriate within the parameters of s 22D.
Failure to Nominate the Person
16 The Court is satisfied that the provisions of s 8(b) of the Interpretation Act 1987 apply. Thus “a person” is to be given not only the singular interpretation but also the plural interpretation.
Categorisation of Work
17 At the date of the issue of the order, the prosecutor was aware that illegal work was being carried out at the defendant’s premises. The prosecutor was empowered by virtue of s 22B(1) to issue the order in terms sufficiently broad to restrain the work of excavation and other work which, if carried out, could have compounded the damage already resulting from a breach of s 22B. Whilst the terms of the order are wide, the purpose of the order was to restrain any work which was contravening or was about to contravene s 22B. Such work may have extended beyond excavation to matters ancillary to excavation. To preserve the status quo, the prosecutor was entitled to issue the order in that form.
Temporal Operation of Notice
18 Section 22D(2) provides that the order takes effect “immediately or from a later time specified in the notice”. Since s 22D(1) requires the notice to be “given” to the person and since provisions for service are contained in s 27, “immediately” is be construed as “immediately upon service”. It follows that a “later time” is a time subsequent to service.
19 The prosecutor purported to specify 3 February 2004 as the date on which the order took effect. Since 3 February 2004 was prior to the date of service, the notice did not take effect on this date, but by the operation of s 22D(2), took effect immediately upon service. The notice was received by the defendant by post on 5 February 2004 in accordance with s 27(1)(a) of the Act. As this method of service was adopted, the notice was “given” on that day. It follows that notice was effective from that date.
Duration of Order
20 The order did not specify a period as required by s 22D(4)(b) but instead purported to render the order valid until a permit was issued. Accordingly, s 22D(4)(c) operates to cause the notice to lapse at the expiration of a three month period. It follows that the order was valid until 5 May 2004. Since the alleged action of the defendant as charged occurred within such a period, there is no basis of invalidity of the order.
21 The Court accordingly finds that the defendant’s challenges to the form of the order fail. However, even if there were an irregularity in the form of the order, this of itself would not necessarily render the order invalid: see Project Blue Sky Incorporated & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 especially at 388-92.
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