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Queanbeyan City Council v Kovacevic

Queanbeyan City Council v Kovacevic

Case [2015] NSWLEC 152 25 September 2015

Appeal

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Civil Litigation & Procedure

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Land and Environment Court

New South Wales

Medium Neutral Citation: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152
Hearing dates: 21 August 2013
Date of orders: 25 September 2015
Decision date: 25 September 2015
Jurisdiction: Class 6
Before: Craig J
Decision:
(1) Appeal allowed.
(2) Set aside the order made by the Local Court at Queanbeyan dismissing the prosecution against the respondent.
(3) Remit the matter to the Local Court at Queanbeyan for determination according to law.
(4) Order that the respondent pay the appellant’s costs of the appeal.
(5) The Appeal Book and Exhibit B may be returned.

Catchwords: APPEAL – prosecutor appeal from dismissal of proceedings in the Local Court – s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001 – appeal confined to a question of law alone – whether appellant was the ‘prosecutor’ entitled to appeal under s 42(2B)(b) – whether appellant was the person responsible for the conduct of the prosecution in the Local Court – entitlement to lead evidence directed to that issue – dismissal of proceedings in the Local Court was an acquittal – whether s 42(2B)(b) founded a right by a prosecutor to appeal from an acquittal – offence against s 125(1) of Environmental Planning and Assessment Act 1979 – failure to cease using premises as a transport depot – proper construction of definition of ‘transport depot’ in Queanbeyan Local Environmental Plan 1998 – disjunctive construction supported by text and context of the definition – appeal allowed – matter remitted to Local Court for determination – order for costs
Legislation Cited: Confiscation of Proceeds of Crime Act 1989 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Evidence Act 1995 (NSW)
Factories, Shops and Industries Act 1962 (NSW)
Fines Act 1996 (NSW)
Industrial Relations Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Justices Act 1902 (NSW)
Justices Legislation Repeal and Amendment Act
2001 (NSW)
Local Government Act 1993 (NSW)
Queanbeyan Local Environmental Plan 1998
Road Transport (Safety and Traffic Management) Act 1999 (NSW)
Suitors’ Fund Act 1951 (NSW)
Summary Jurisdiction Act 1848 (UK)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27
Attorney General v Till [1910] AC 50
Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494; 147 LGERA 433
Beckwith v The Queen [1976] HCA 55; 135 CLR 569
Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257
Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503
Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379
Davern v Messel [1984] HCA 34; 155 CLR 21
Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265
Director of Public Prosecutions (NSW)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Queanbeyan City Council v Kovacevic

Details

AGLC: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152
Case: [2015] NSWLEC 152
Decision Date: 25 September 2015

CaseChat Overview and Summary

The case of Queanbeyan City Council versus Kovacevic involved an appeal by the Queanbeyan City Council against a decision made by the Local Court at Queanbeyan. The council had prosecuted the respondent, Mr Kovacevic, for offences related to environmental regulations. The Local Court had dismissed the prosecution, and the council sought to appeal this decision on the grounds that the lower court had erred in law.

The primary legal issue before the court was whether the Local Court had correctly applied the relevant environmental laws in dismissing the prosecution. The council argued that the lower court had failed to properly interpret and apply the statutory provisions governing environmental offences. The council contended that the Local Court had misapplied the principles of statutory interpretation, leading to an unjust outcome.

In allowing the appeal, the court found that the Local Court had indeed erred in its interpretation and application of the statutory provisions. The court held that the lower court had not correctly understood the scope and intent of the environmental regulations. As a result, the order dismissing the prosecution was set aside, and the matter was remitted to the Local Court for further consideration in accordance with the law. The respondent was ordered to pay the appellant’s costs of the appeal, and the appeal book along with the exhibit were to be returned.

Orders

Orders of the court

(1) Appeal allowed.

(2) Set aside the order made by the Local Court at Queanbeyan dismissing the prosecution against the respondent.

(3) Remit the matter to the Local Court at Queanbeyan for determination according to law.

(4) Order that the respondent pay the appellant’s costs of the appeal.

(5) The Appeal Book and Exhibit B may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Queanbeyan City Council v Kovacevic [2015] NSWLEC 152

Most Recent Citation

Mosman Municipal Council v Spice (No 3) [2015] NSWLEC 189

Cases citing this decision · 5 of 5 shown

Kovacevic v Queanbeyan City Council
[2016] NSWCA 346

…urt or tribunal: Land and Environment Court Jurisdiction: Class 6 Citation: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Date of Decision: 25 September 2015 Before: Craig J File Number(s): 61062 of 2012…
Queanbeyan-Palerang Regional Council v O’Sullivan
[2016] NSWLEC 83 Para 5

…s appeal, or from requesting that the decision of the court below be set aside and the matter be redetermined ( Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [18]-[86]).…
Heatscape Pty Ltd v Mahoney (No 2)
[2016] NSWLEC 45 Para 75

…29 at [11]–[57], Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442 at [2]-[11] and Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [27]). In other words, Mr Mahoney neither commenced the prosecution in his personal capacity nor on behalf of the State Debt Recovery Office.…
Queanbeyan City Council v Kovacevic (No 2)
[2015] NSWLEC 196 Para 1

…o the Local Court for determination according to law and ordered that Mrs Kovacevic pay the costs of the appeal ( Queanbeyan City Council v Kovacevic [2015] NSWLEC 152).…
Mosman Municipal Council v Spice (No 3)
[2015] NSWLEC 189 Para 7

…submission that caused the Local Court to fall into an error of law: see above at [2]. The appellant refers to Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [181] where that was a circumstance taken into account when ordering the unsuccessful respondent to pay the successful appellant’s costs. I take it…

View all 5 citing cases →

Cases cited in this decision · 29 of 29 shown

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd
[2012] HCA 55

…f New South Wales [2008] NSWCA 292; 74 NSWLR 257 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Davern v Messel [1984] HCA 34; 155 CLR 21 Director of Public Prosecutions (NSW) v Majok [2009] NSWSC…
Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd
[2012] NSWLEC 258 Para 80

…o this Court pursuant to s 42(2B) of the Appeal Act, the last being the decision of Pain J in Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258. All involved an appeal from the dismissal of a summary prosecution in the Local Court following a substantive hearing. In none of those three decisi…
Maritime Authority of NSW v Nikolai Rofe
[2012] NSWSC 5 Para 169

…The observations of his Honour in Wunderwald , were cited with apparent approval by Brereton J in Maritime Authority (NSW) v Rofe [2012] NSWSC 5; 84 NSWLR 51 at [105]. In the latter case, Brereton J continued by observing that an order allowing an appeal would not necessarily be made just because legal error was…
Kostas v HIA Insurance Services Pty Ltd
[2010] HCA 32 Para 163

…urt on appeal to make factual findings when the right to appeal is limited to a question of law (see also Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [32]).…
WILLIAMS v Blackley
[2010] NSWCA 246 Para 79

…In Williams v Blackley [2010] NSWCA 246 Basten JA (Campbell JA agreeing) made observations about the operation of s 56 of the Appeal Act. At [10] his Honour said:…
Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No. 2)
[2009] NSWLEC 200 Para 73

…Department of Environment and Climate Change v Gleeson ; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No 2) [2009] NSWLEC 200 at [18] and [24], the “dismissal of a charge is the completion of the proceedings commenced by the charge, entitling the defendant to a plea of autrefois…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue
[2009] HCA 41 Para 66

…es of statutory construction. Those principles are usefully stated by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] where their Honours said:…
Director of Public Prosecutions v Majok
[2009] NSWSC 192

…A 155; 66 NSWLR 379 Davern v Messel [1984] HCA 34; 155 CLR 21 Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265 Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182 Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 Director of Public Prosecutions…
Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales
[2008] NSWCA 292 Para 82

…Mrs Kovacevic relies upon the decision of the Court of Appeal in Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257 in support of her submission. As I understand the submission, reference is made to the leading judgment delivered in that case by Spigelman C…
Sasterawan v Morris
[2008] NSWCA 70 Para 27

…d by the registrar, it must be assumed that it was validly issued under s 173 of the Criminal Procedure Act ( Sasterawan v Morris [2007] NSWCCA 185 ; 69 NSWLR 547 at [21]). The identification of the Council in the CAN against the side heading “Department/Organisation”, appearing immediately beneath Mr Reynders’…
Matic v Mid-Western Regional Council
[2008] NSWLEC 113 Para 105

…elf and not by reference to “pre-conceived ideas or vague notions of what might or might not be desirable” ( Matic v Mid-Western Regional Council [2008] NSWLEC 113 at [8]).…
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council
[2007] NSWCA 300 Para 163

…r is not beyond doubt when regard is had to the observations of the Court of Appeal in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 insofar as that decision reflected the limited power of a court on appeal to make factual findings when the right to appeal is limited to a…
Sasterawan v Morris
[2007] NSWCCA 185 Para 27

…endance notice signed by the registrar, it must be assumed that it was validly issued under s 173 of the Criminal Procedure Act ( Sasterawan v Morris [2007] NSWCCA 185 ; 69 NSWLR 547 at [21]). The identification of the Council in the CAN against the side heading “Department/Organisation”, appearing immediately benea…
Director of Public Prosecutions (NSW) v Zhang
[2007] NSWSC 308 Para 78

…a prosecution for an environmental offence. Section 56(1)(c) founded the appeal to the Supreme Court in Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78. A Local Court Magistrate had, by order, dismissed a charge against the defendant for an offence against the Road Transport (Safety and Tr…
Cranbrook School v Woollahra Municipal Council
[2006] NSWCA 155 Para 105

…). As such, it should be interpreted conformably with general principles of statutory interpretation ( Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 at [36]). While application of those principles requires that focus be upon the text of the provision being construed, the context of t…
RTA v Field
[2005] NSWSC 606 Para 32

…sent appeal. That conclusion is consistent with the finding made by Kirby J in similar circumstances in Roads and Traffic Authority (NSW) v Field [2005] NSWSC 606; 44 MVR 60. His Honour was there determining an appeal under s 56(1)(c) of the Appeal Act, being a provision equivalent to s 42(2B), enabling an appeal b…
Western Australian Planning Commission v Temwood Holdings Pty Ltd
[2004] HCA 63

…to the language of the instrument considered in context. There is no room for ‘some preconceived general notion of what constitutes planning’ ( Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Call…
Director of Public Prosecutions v Wunderwald
[2004] NSWSC 182 Para 168

…In Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182, Sully J determined an appeal on a question of law from the Local Court under s 56 of the Appeal Act. He found that the error was material to the decision in the Local Court to dismiss the prosecution against the defendant. The submission was ma…
Eastman v Director of Public Prosecutions (ACT)
[2003] HCA 28 Para 37

…In support of her written submission, reliance was placed upon the decision of the High Court in Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318. No pinpoint reference is made in her written submissions to the judgments in that matter and none was given in oral submissions. I am unabl…
Director of Public Prosecutions v Darby
[2002] NSWSC 1157 Para 77

…eme Court under that section, following dismissal of summary criminal proceedings in the Local Court, include Director of Public Prosecutions v Darby [2002] NSWSC 1157 and Director of Public Prosecutions v Hardman [2002] NSWSC 714; 37 MVR 137. Both appeals were from orders made by a magistrate dismissing the summary…
Eastman v The Queen
[2000] HCA 29 Para 38

…It may be that reference was intended to be made to an earlier decision of the High Court in Eastman v The Queen [2000] HCA 29; 203 CLR 1. In that appeal Mr Eastman sought to contend, for the first time, that his conviction for murder in the ACT Supreme Court should be set aside because he was, at the time of tr…
Coco v the Queen
[1994] HCA 15 Para 173

…ar costs. In support of the latter submission, reliance is placed upon the decision of the Court of Appeal in Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523.…
Davern v Messel
[1984] HCA 34 Para 57

…acquit the alleged offender. Such a right can only be conferred by statute, expressing that right in clear and unambiguous terms ( Davern v Messel [1984] HCA 34; 155 CLR 21 (per Gibbs CJ at 31, Mason and Brennan JJ at 48 and Deane J at 68). That proposition is not controversial.…
Beckwith v the Queen
[1976] HCA 55 Para 146

…rinciples of statutory interpretation. That proposition was articulated in the High Court by Gibbs J (Stephen J agreeing) in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576 where his Honour said:…
Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council
[1970] HCA 42

…Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30 at [56] citing Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 at 500). Further, and as noted in Callega v Botany Bay City Council (2005) 142 LGERA 104 at [25] ‘any attempt to always find planning logic in planning ins…
Australian Gas Light Company v Mine Subsidence Board
[2006] NSWLEC 494 Para 39

…ermine that challenge before turning to consider the substance of the appeal. As Biscoe J observed in Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494; 147 LGERA 433 at [44], the first duty of the Court “is to satisfy itself that its jurisdiction has been properly invoked and its jurisdiction depend…
Fairfield City Council v Mangos
[2004] NSWLEC 298 Para 93

…industry or a passenger transport shop”. After then referring to and distinguishing the decision of this Court in Fairfield City Council v Mangos [2004] NSWLEC 298, he said at [14]:…
[2002] NSWSC 714
[2002] NSWSC 714 Para 77

…minal proceedings in the Local Court, include Director of Public Prosecutions v Darby [2002] NSWSC 1157 and Director of Public Prosecutions v Hardman [2002] NSWSC 714; 37 MVR 137. Both appeals were from orders made by a magistrate dismissing the summary prosecution for an offence following a hearing of the substant…
[1910] AC 50
[1910] AC 50 Para 95

…o ways, the court was required to apply the interpretation that was “more favourable to the accused”. The decision in Attorney-General v Till [1910] AC 50 was cited in support of that proposition.…

Legislation cited in this decision · 17

Confiscation of Proceeds of Crime Act 1989 (NSW)
1 mention (from Para 176)
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 2)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 22)
Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
1 mention (from Para 72)
Director of Public Prosecutions Act 1986 (NSW)
1 mention (from Para 53)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 158)
Fines Act 1996 (NSW)
1 mention (from Para 44)
Industrial Relations Act 1996 (NSW)
1 mention (from Para 82)
Interpretation Act 1987 (NSW)
1 mention (from Para 21)
Justices Act 1902 (NSW)
1 mention (from Para 72)
Justices Legislation Repeal and Amendment Act 2001 (NSW)
1 mention (from Para 72)
Local Government Act 1993 (TAS)
1 mention (from Para 21)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
1 mention (from Para 78)
Shops and Industries Act 1962 (NSW)
1 mention (from Para 1)
Suitors’ Fund Act 1951 (NSW)
1 mention (from Para 161)
Summary Jurisdiction Act 1848 (UK)
1 mention (from Para 71)

Medium Neutral Citation:	Queanbeyan City Council v Kovacevic [2015] NSWLEC 152
Hearing dates:	21 August 2013
Date of orders:	25 September 2015
Decision date:	25 September 2015
Jurisdiction:	Class 6
Before:	Craig J
Decision:	(1) Appeal allowed. (2) Set aside the order made by the Local Court at Queanbeyan dismissing the prosecution against the respondent. (3) Remit the matter to the Local Court at Queanbeyan for determination according to law. (4) Order that the respondent pay the appellant’s costs of the appeal. (5) The Appeal Book and Exhibit B may be returned.
Catchwords:	APPEAL – prosecutor appeal from dismissal of proceedings in the Local Court – s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001 – appeal confined to a question of law alone – whether appellant was the ‘prosecutor’ entitled to appeal under s 42(2B)(b) – whether appellant was the person responsible for the conduct of the prosecution in the Local Court – entitlement to lead evidence directed to that issue – dismissal of proceedings in the Local Court was an acquittal – whether s 42(2B)(b) founded a right by a prosecutor to appeal from an acquittal – offence against s 125(1) of Environmental Planning and Assessment Act 1979 – failure to cease using premises as a transport depot – proper construction of definition of ‘transport depot’ in Queanbeyan Local Environmental Plan 1998 – disjunctive construction supported by text and context of the definition – appeal allowed – matter remitted to Local Court for determination – order for costs
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) Director of Public Prosecutions Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Factories, Shops and Industries Act 1962 (NSW) Fines Act 1996 (NSW) Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW) Justices Act 1902 (NSW) Justices Legislation Repeal and Amendment Act 2001 (NSW) Local Government Act 1993 (NSW) Queanbeyan Local Environmental Plan 1998 Road Transport (Safety and Traffic Management) Act 1999 (NSW) Suitors’ Fund Act 1951 (NSW) Summary Jurisdiction Act 1848 (UK)
Cases Cited:	Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Attorney General v Till [1910] AC 50 Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494; 147 LGERA 433 Beckwith v The Queen [1976] HCA 55; 135 CLR 569 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Davern v Messel [1984] HCA 34; 155 CLR 21 Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265 Director of Public Prosecutions (NSW)…