Re Magistrate Malone;

[2015] WASC 42

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RE MAGISTRATE MALONE; EX PARTE BRIGHT IMAGE DENTAL PTY LTD [2015] WASC 42

CORAM:   McKECHNIE J

HEARD:   2 FEBRUARY 2015

DELIVERED          :   5 FEBRUARY 2015

FILE NO/S:   CIV 1085 of 2015

MATTER                :Review Order against MAGISTRATE MALONE, Magistrate of the Magistrates Court of Western Australia

EX PARTE

BRIGHT IMAGE DENTAL PTY LTD
Applicant
 

Catchwords:

Courts and judges - Review order - Whether excess of jurisdiction - Criminal procedure - Whether amendment creates a new offence - No new principles

Legislation:

Criminal Procedure Act 2004 (WA), s 132
Magistrates Court Act 2004 (WA), s 36
Planning and Development Act 2005 (WA), s 218

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr P McQueen

Respondent:     Ms A M Wood

Solicitors:

Applicant:     Lavan Legal

Respondent:     Kott Gunning

Case(s) referred to in judgment(s):

Green v The State of Western Australia [No 2] [2014] WASCA 53

Rayney v AW [2009] WASCA 203

1. McKECHNIE J:  The applicant seeks an order to review a decision by the magistrate allowing an amendment to a prosecution notice and adjourning the matter for hearing to overcome any prejudice.

   Magistrate Malone, Magistrate of the Magistrates Court of Western Australia satisfy the Supreme Court at a hearing that the orders made by him on 3 December 2014 at the Armadale Courthouse, in respect of Prosecution Notice Number 1309908 (Prosecution Notice) should not be set aside and an order made for dismissal of the charge in Prosecution Notice.

2. The grounds for the review are said to be contained in the supporting affidavit of Brendan Reese Foley. 

A charge is laid

1. The applicant was charged by prosecution notice that between 16 July 2013 and 28 October 2013 at 267 (Lot 3) Kenwick road, Maddington:

   The accused, being the registered property owner of 267 (Lot 3) Kenwick road, MADDINGTON, did unlawfully commence, continue or carry out development on such property by permitting items to be placed on the property, without the authority of the City of Gosnells Town Planning Scheme No 6 [my italics].

2. The written law referred to in the prosecution notice is the Planning and Development Act 2005 (WA) s 218(b) and s 223. The Planning and Development Act s 218 provides:

   Planning scheme or condition on development, contravening etc.

   A person who -

   (a)contravenes the provisions of a planning scheme; or

   (b)commences, continues or carries out any development in any part of a region the subject of a region planning scheme or any part of an area the subject of a local planning scheme or improvement scheme otherwise than in accordance with the provisions of the planning scheme; or

   (c)commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,

   commits an offence.

3. The prosecutor provided disclosure by way of a copy of the statement of material facts and subsequently a summary of evidence proposed to be given by an officer of the City of Gosnells, Jordan McDermott.  The statement of material facts read:

   SUMMARY OF OFFENCE:

   The property involved in this matter is 267 (Lot 3) Kenwick Road Maddington.  The property is 1.646 hectares, zoned General Rural under the City of Gosnells Town Planning Scheme No. 6.

   On 16 March 2011, the property owner made application to have the property used as a truck service centre.

   Following extensive inquiries, the application was refused on 2nd August 2011, as the request was deemed to be a transport depot, a use that is unable to be approved within the City of Gosnells.

   A Transport Depot is defined by Town Planning Scheme No. 6 as;

   Any land or building used for the garaging or parking of motor vehicles used or intended to be used for carrying goods or persons for hire or reward or for any consideration or for the transfer of goods or persons from one motor vehicle to another such motor vehicle and includes the maintenance, management and repair of the vehicles used but not of other vehicles

   The owner was advised of this, both verbally and in writing, along with the reasons for the refusal.

   On 12th July 2013, as a result of a complaint, City of Gosnells Compliance staff attended at the property and observed a large number of trucks, trailers and vehicle parts to be on the property.  A loading ramp was observed on the site, with a trailer parked alongside.  Also located on the property were a large amount of scaffolding equipment and an unauthorised building (Nissen Hut).

   The property owner was contacted by City of Gosnells staff and a site meeting organised.  At the meeting, on 8 August 2013, General Rural zoning was explained to the owner, who stated he would arrange removal of the items.

   A request was made by the accused for a delay of 11 weeks, this was denied and an extension of 6 weeks, 24 September 2013, was given in writing.

   As of this date the scaffolding has been removed, but a large amount of crane equipment has been placed on site.  The trucks, trailers and building remain.

4. Part of Mr McDermott's statement reads:

   15.On 4 October 2013 an inspection was carried out by a City of Gosnells officer and photographs were taken showing;

   •A number of large trucks

   •A nissen hut

   •At least two sea containers

   •Items on pallets

   •A truck trailer with items stored on it.

   16.An aerial photograph was taken on 28 October 2013 showing the property is being used for storage.

   17.On 29 October 2013 an inspection was carried out by Jorden McDermott and photographs were taken showing;

   •A large crane

   •A number of truck trailers

   •Some large orange metal objects which are suspected to be either part of a crane or scaffolding

   •Nissen Hut

   18.On 2 May 2014 Mr Vinzi Carbone of Bright Image Dental Pty Ltd signed an Application for Planning Approval for an existing use (which was submitted to the City on 22 May 2014.  In the section titled 'Existing/Building/ Use … Description of proposed development and/or use' and the handwritten words 'Storage/ Truck Trailer parking' appear.

   19.On 6 May 2014 Jordan McDermott conducted a site inspection and took a number of photographs showing;

   a.Trailer parking

   b.Bus parking

   c.Truck parking

   d.Sea containers

   e.Nissan Hut

   f.General storage including pallets, rigging machinery

   20.On 26 August 2014 (communicated by letter on 2 September 2014) the City of Gosnells issued a Planning Approval for 'Existing Transport Depot and Storage'.

What happened at the hearing

1. There was a hearing on 3 December 2014.  No transcript has been provided though it has been ordered by the applicant.  The affidavit asserts that before the prosecutor's opening address, counsel for the applicant objected to the prosecution notice on the grounds that it was defective as an offence under the City of Gosnells Town Planning Scheme No 6 had not been disclosed.  Mr McQueen confirmed this was so at the hearing of this application.

2. Duly warned, the prosecutor made application to amend the prosecution notice to insert the words 'by carrying out the developments of transport depot and storage' and deleting other words.  No copy of the amended prosecution notice has been filed in this court.  However, both counsel are agreed that the amended prosecution notice reads:

   The accused, being the registered property owner of 267 (Lot 3) Kenwick Road, MADDINGTON, did unlawfully commence, continue or carry out development on such property by carrying out the developments of transport, depot and storage, without the authority of the City of Gosnells Town Planning Scheme No 6 [my italics].

3. This amendment was apparently opposed by counsel for the applicant, Mr McQueen, on the basis that the prosecution notice did not allege how Town Planning Scheme No 6 had been breached and to allow the prosecution now to amend the charge as proposed would effectively permit the prosecutor to allege a new offence.

4. In the alternative, it was argued before the magistrate that if the expression used in the prosecution notice 'the placing of items on the land' is sufficient for the purposes of describing the offence, then the applicant has been charged with more than one offence, as 'placing items on the land' could be any number of different types of unauthorised developments pursuant to Town Planning Scheme No 6.  This argument was not repeated in the present application.

5. It is said that the magistrate granted the prosecution's application to amend the prosecution notice and ordered that the matter be adjourned to a trial in March 2015.  There is presently no record of the magistrate's reasons.  However, it is the order made which attracts review, not necessarily any error of reasoning.

6. Mr Foley's affidavit concludes:

   12.From a review of the records available to me, I verily believe that in allowing the prosecution notice to be amended, the Applicant has been prejudiced, notwithstanding that an adjournment of the proceedings was granted.

7. It is not said how the applicant was prejudiced.  This, as best I can discern, is the ground the applicant relies upon though I have had regard to the whole affidavit just in case.

The Magistrates Court Act 2004 (WA) s 36

1. The purpose of the Magistrates Court Act 2004 (WA) s 36 was explained in Rayney v AW [2009] WASCA 203. Relevant to the present facts, the power to grant relief is only enlivened if a ground listed in s 36(1)(c) has been established.

2. An applicant must establish an arguable case that the magistrate has made a reviewable error before the magistrate and the interested party can be called upon to satisfy the court.

3. The grounds for a review order are confined. The application is not an appeal. The Supreme Court cannot exercise powers under s 36(5) of the Magistrates Court Act because no appeal lies at this stage: Criminal Appeals Act 2004 (WA) s 4(6). The decision to amend a charge is an interlocutory ruling not a 'decision' as that word is defined in the Criminal Appeals Act.

4. In Rayney:

   Judicial review is a supervisory function that is distinct from an appeal or other review on the merits.  Judicial review concerns itself solely with the legality of decisions.  The focus is on jurisdictional errors. At common law, the scope of judicial review is determined by the availability of the prerogative writs, which include mandamus, prohibition and certiorari.  For all intents and purposes, the right and remedy are indistinguishable at common law. 

   The scope of judicial review varies according to the nature and power of the decision-maker.  The common law grounds of judicial review applicable to courts and analogous tribunals are significantly narrower than the grounds of review of decisions of administrative tribunals:  Craig v The State of South Australia (1995) 184 CLR 163, 177 - 179; Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 [181].

   There can be no doubt that the power in s 36 of the Magistrates Court Act is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to judicial review of the acts or omissions of officers of the Court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies. That purpose is evident in the language and context of s 35 and s 36. Section 35 takes away the Supreme Court's power to issue a prerogative writ in the form of a writ of mandamus, prohibition or certiorari and substitutes the remedies in s 36(4). A review order, like an order nisi, is an order to show cause why the relief in s 36(4) should not be granted.

   The language and purpose of s 36 in its broader statutory context compels the conclusion that the power in s 36(4) to grant relief is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established [25] - [28].

5. The only relevant ground for an order is under the Magistrates Court Act s 36(1)(c), effectively that the magistrate had no jurisdiction to make the order. An error made within jurisdiction might eventually be the subject of an appeal but does not show jurisdictional error.

Amending a charge or a prosecution notice

1. The power to amend a charge is found in the Criminal Procedure Act 2004 (WA) s 132:

   Amending charges etc.

   (3)A court, on the application of the prosecutor, may amend a charge.

   (4)Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.

   …

   (8)If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused’s defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires.

   (9)If a court amends a prosecution notice or indictment to include a separate charge and at the time of the amendment a trial of the prosecution notice or indictment is in progress, the court -

   (a)may discontinue the trial of all of the charges in, and adjourn, the prosecution notice or indictment; or

   (b)may continue with the trial of any charge in the prosecution notice or indictment other than the charge that has been included, and adjourn that charge.

   (10)A court may refuse to amend a charge, prosecution notice or indictment if it is satisfied -

   (a)the amendment is material to the merits of the case; and

   (b)the amendment would prejudice the accused’s defence of the charge, prosecution notice or indictment; and

   (c)an adjournment would not overcome the prejudice.

2. Section 132(9) expressly provides a power to amend a prosecution notice to include a separate charge. No argument was addressed on this point so I will not consider it further other than to remark that it may be an amendment to a prosecution notice changing a charge which does not disclose an offence to one which does, is a separate charge within the meaning of s 132(9). If that is so, the applicant's argument, that the amendment was effectively a new charge, would fail. The magistrate was acting within jurisdiction in amending the prosecution notice even if the effect was to add a new separate charge.

3. The answer to the principle submission advanced by Mr McQueen, is that the amendment did not create a new charge.

4. The charge remained a charge under the Planning and Development Act s 218(b). The same penalty is provided in s 223. All that changed was the particularisation of the way in which it was alleged that the town planning scheme was breached. The Criminal Procedure Act allows for such an amendment and provides remedies against consequential prejudice.  One remedy is to adjourn the hearing.  This is what happened.  Any prejudice in the change of particularisation was overcome by the adjournment.

5. If the applicant is contending as appears from Mr Foley's affidavit par 12 that the applicant was prejudiced because the magistrate could not have cured the prejudice by an adjournment and should have exercised power under the Criminal Procedure Act s 132(10) then that would also be an error within jurisdiction, the remedy for which might be an appeal but not a review order.

6. Nor is the alternative argument advanced before the magistrate (though not in this court) attractive.

7. In Green v The State of Western Australia [No 2] [2014] WASCA 53 the Court of Appeal considered patent and latent duplicity in a charge. In the present case, an offence would be established if the prosecution proved that an item was placed on the property without the authority of the City of Gosnells and the placement amounted to unlawfully commencing, continuing or carrying out development on the property. The prosecution on the amended charge would succeed if it established a development of transport, depot and storage. Any ambiguity can be cured by further particulars.

Conclusion

1. The magistrate had power and acted within jurisdiction to allow an amendment to the charge.    The application is dismissed.

2. The City of Gosnells chose to be represented at the ex parte hearing.  Ms Wood expressly made no submission on costs and I make no order as to costs.