Pfeiffer v Stevens

[2000] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

Pfeiffer v Stevens [2000] QCA 90

PARTIES:

OTTO PFEIFFER
(respondent/applicant)
v
PAUL ERNEST STEVENS
(complainant/respondent)

FILE NO/S:

Appeal No 323 of 2000
DC No 708 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

24 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2000

JUDGES:

McPherson JA, Moynihan SJA, Atkinson J
Judgment of the Court

ORDER:

Application for leave to appeal dismissed with costs.

CATCHWORDS:

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – procedure for making interim local laws – whether interim local law had expired at the relevant time

Acts Interpretation Act 1954 (Qld) s 23(1)
Local Government Act 1993 (Qld) s 850, s 851, s 859, s 860, s 861, s 862, s 863
Gold Coast City Council, Interim Local Law No 6

COUNSEL:

Mr R Myers for the applicant
Mr S Ure for the respondent

SOLICITORS:

Gall Standfield and Smith for the applicant
King and Company for the respondent

1. McPHERSON JA, MOYNIHAN SJA & ATKINSON J: Otto Pfeiffer is the applicant for leave to appeal against a decision of Hanger DCJ given at Southport on 17 December 1999.  His Honour's decision reversed that of a magistrate given on a complaint issued by the respondent Paul Stevens charging that on 4 September 1998 the applicant had cut down trees and destroyed vegetation in contravention of the Gold Coast City Council's Interim Local Law No 6 (Vegetation Management).  At the hearing in the magistrates court the applicant raised a preliminary point of law that the interim local law was invalid.  The submission succeeded in the magistrates court, but the decision was reversed on the appeal to the learned District Court judge. It is against that decision that leave to appeal to this Court is now sought.

1. Division 2 of Part 1 of Chapter 12 of the Local Government Act 1993 distinguishes between a local law, which is a law made by a local government (s 850); a model local law (s 851); and an interim local law, which is, "because of the nature of the law", a local law that the local government and the Minister agree may be made using the process stated in Division 2 of Part 2 of the Act. The division in question, which is entitled Making interim local laws provides in s 859 that to make an interim local law the process stated in Division 2 must be used. Doing so involves four steps specified in ss 860 to 863. First, the local government must by resolution propose to make a law: s 860(1)(a), and also get the Minister's agreement to make the law as an interim local law: s 860(1)(b). Section 860 provides:

"(2)  The proposed local law must include a sunset provision stating the law will expire

(a)     6 months after its commencement; or

(b)     at the end of a longer period gazetted by the Minister."

1. Step 2 is that the local government must advise the Minister of the proposed local law and state why it is necessary or desirable to make it on an interim basis, as well as giving the Minister certain required information: s 861(1). The third step is for the local government by resolution to make the proposed interim local law: s 862(1); and the fourth is to give public notice of the law by publishing certain particulars in the gazette: s 863(1).

1. There is no question that this process was carried out in making the Council's Interim Local Law No 6. The Minister's agreement was obtained, the resolution required by s 862(1) was passed, and notice of the making of the interim local law was, in accordance with s 863(1) of the Act, gazetted on 14 March 1997. We do not seem to have been provided with a copy of the gazette or of the interim local law notified in it, but it sufficiently appears from the material before us that it was expressed in para 4 to operate until 14 September 1997 unless extended by the Minister by a further notice in the gazette. By a further notice published in the gazette on 5 September 1997, the interim local law was extended to 14 March 1998. On 13 March 1998 it was extended for a second time, on this occasion to 14 September 1998. It was during this second period that the applicant is on 4 September 1998 alleged to have destroyed vegetation in contravention of Interim Local Law No 6.

1. The applicant presented three submissions in support of the contention that the interim local law was no longer in force at the time of the alleged offence. The first was, in effect, that s 860(2) of the Act offers a choice of alternatives that are mutually exclusive. To be interim, a proposed local law must, as appears from s 860(1)(b), include a "sunset provision" stating it will expire either (a) six months after its commencement, or (b) at the end of a longer period gazetted by the Minister. Here the period selected was the six months from 14 March to 14 September 1997. Once the method contemplated in s 860(1)(a) was adopted, there was, it was submitted, no power to resort to the alternative of a longer period contemplated in s 860(1)(b).

1. The submission gives undue weight to the presence of the word "or" appearing between paras (a) and (b) of s 860(1). It would presumably not have been tenable if the relevant "sunset" provision in the local law had provided for expiry of the interim local law on 15 September 1997, which would have been a period "longer" than the six months mentioned in s 860(1)(a). But, in any event, the law in question did not in terms specify that it would expire "six months after its commencement". What it did was to specify a period at the end of which it would expire. It is true that it was apparently a period running to 15 September 1997, which was not in fact "longer" than six months after its commencement; but, even if so literal an approach to the word "longer" is adopted, the period specified in para 4 of the notice published in the gazette satisfied this requirement. It provided that "this interim local law expires on 14 September 1997, unless extended by the Minister by notice in the Government Gazette". Once so extended, as it was by the notice published on 5 September 1997, it was limited to expire at the end of a period longer than six months and consequently satisfied s 860(2)(b) of the Act.

1. In response, it was submitted that, even so, the second of the two extensions, which was the one gazetted on 13 March 1998 extending the law to 14 September 1998, contained no such reservation by the Minister purporting to confer power to extend the interim law again, as had been previously provided for in para 4 of the earlier notice gazetted on 14 March 1997. But at this stage the power that the Minister was purporting to exercise can only have been that conferred by s 860(2)(b). The period to 14 September 1998 is obviously "longer" than six months from the date of commencement of the interim law on 14 March 1997.

1. The essence of the applicant's submission is, however, directed to another point altogether. It is that the power, if any, of the Minister to extend the interim local law is limited to doing so on one occasion, and does not contemplate its being exercised by means of what the applicant described as "multiple gazettals". This, however, is to ignore the impact of s 23(1) of the Acts Interpretation Act 1954, which provides:

"23(1). If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires."

1. For that provision to apply here, there must first be a statutory power in a person to extend the expiry date of the interim local law. Such a power is conferred, or is capable of being conferred, under s 863(2)(c) of the Act. Section 863(1) provides that a notice of the making of the interim local law must be published in the gazette stating the matters specified in paras (a) to (d) of that subsection. Section 863(2) then goes on:

"(2)  The notice may also state the following -

……..

(c)  the date the local law will expire and that the Minister may extend this date by gazette notice."

As we have seen, the original interim local law stated that it operated until 14 September 1997 unless extended by the Minister by further notice in the gazette. That was a sufficient compliance with s 863(2)(c). Once the power to extend the expiry date was so conferred, s 23(1) of the Acts Interpretation Act operated to ensure that it was exercisable as occasion required.  The second extension to 14 September 1998 was therefore justified and authorised by this combination of statutory provisions.

1. We were pressed by the applicant with the submission that it was only "in extreme circumstances" that an interim local law could be extended in this way.  The Local Government Act says nothing of that kind, while s 23(1) of the Acts Interpretation Act expressly permits the relevant power to be exercised "as occasion requires". The procedure envisaged in Division 2 of Part 2 of chapter 12 of the Local Government Act admittedly has in view the making of something described as an interim local law; but, against that consideration, s 863(2)(c) plainly contemplates that the Minister may extend the date on which it is due to expire. Conceivably a point in time may be reached at which it is no longer possible to describe a local law as interim; but, in the case of Interim Local Law No 6, that stage had not been reached by 5 September 1997, nor by 14 September 1998.

1. The decision below was correct and there is therefore no basis for granting leave to appeal.  The application should be dismissed with costs.