Steelmakers Pty Ltd v City of Swan - [2014] WASC 449

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: STEELMAKERS PTY LTD -v- CITY OF SWAN [2014] WASC 449

CORAM: KENNETH MARTIN J

HEARD: 26 AUGUST 2014

DELIVERED : 2 DECEMBER 2014

FILE NO/S: SJA 1011 of 2014

BETWEEN: STEELMAKERS PTY LTD
Appellant
AND
CITY OF SWAN
Respondent

FILE NO/S :SJA 1012 of 2014

BETWEEN :BAYBLUE HOLDINGS PTY LTD
Appellant
AND
CITY OF SWAN
Respondent

ON APPEAL FROM:
For File No               :  SJA 1011 of 2014
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 10835 of 2013
For File No               :  SJA 1012 of 2014
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 10838 of 2013, MI 10839 of 2013

Catchwords:

Summary prosecutions - Magistrates Court - Unauthorised additions to shed - 'Tear down' order by City - Retrospective approval - Pleas of guilty - Corporations - Unrepresented defendants - Directors enter pleas of guilty - Appeals - Sentences manifestly excessive - Appeal against conviction - Appeal on ground that record high fine manifestly excessive - Sentencing discretion miscarries - Resentencing substituted fine

Legislation:

Planning and Development Act 2005 (WA)

Result:

Appeals allowed

Category: B

Representation:

SJA 1011 of 2014

Counsel:

Appellant: Mr J C W Skinner
Respondent: Mr P D Gillett

Solicitors:

Appellant: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

SJA 1012 of 2014

Counsel:

Appellant: Mr J C W Skinner
Respondent: Mr P D Gillett

Solicitors:

Appellant: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

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

Allpike v Lang (1991) 82 LGERA 373
Basso-Brusa v City of Wanneroo [2003] WASCA 103
Chen v City of Stirling [2014] WASC 183; (2014) 203 LGERA 244
Chong & Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470
Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83
Doherty v Murphy [1996] 2 VR 553
DPJB v The State of Western Australia [2010] WASCA 12
Eley v Town of Victoria Park [2014] WASC 103
Findlay v State of Victoria [2009] VSCA 294
Geary v Shire of York [2014] WASC 224
Genovese v City of Perth [2012] WASCA 89
Goddard v City of Stirling [2009] WASC 28
GT Homes Pty Ltd v Shire of York [2010] WASC 312
Kwa v City of Stirling [2001] WASCA 370; (2001) 117 LGERA 320
Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87
McLennan v McCallum [2010] WASCA 45
Palumbo v The State of Western Australia [2014] WASCA 55
Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388
Parker v The State of Western Australia [2014] WASCA 56
Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234
Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342
Rinaldi v The State of Western Australia [2007] WASCA 53
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1
Tissier v City of Rockingham [2014] WASC 158
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
Vella v The State of Western Australia [2006] WASCA 129
Warren v Van den Berg [2004] WASCA 32
KENNETH MARTIN J:

Overview

These two appeals were heard together before me on 26 August 2014. They arise out of the convictions on pleas of guilty of two related corporate appellants in the Midland Magistrates Court on 30 January 2014 ‑ for offences relating to unauthorised building works on an industrial premises, namely Lot 63, 23 Montgomery Way, Malaga. The City of Swan was the prosecutor at first instance and is the respondent in the appeals.
In SJA 1011 of 2014, the appellant is Steelmakers Pty Ltd, who I will refer to as Steelmakers. Under prosecution notice MI 10835 of 2013, Steelmakers was charged with carrying out a development which was required to comply with the City of Swan Local Planning Scheme No 17 and failed to comply with a condition imposed under that Scheme, contrary to s 218(c) of the Planning and Development Act 2005 (WA). This offence was alleged to have occurred between 30 May 2013 and 29 November 2013.
In SJA 1012 of 2014, the appellant is Bayblue Holdings Pty Ltd, who I will refer to as BBH. Under prosecution notice MI 10838 of 2013, BBH was charged with failing to comply with a direction given to it under s 214(3) of the Planning and Development Act within 60 days of being given the direction, contrary to s 214(7) of the Act. The offence was alleged to have occurred between 23 November 2012 and 28 February 2013. The prosecution notice was amended, as regards the timeframe for the offence, in court on 30 January 2014. Under a separate prosecution notice (MI 10839 of 2013), BBH was also charged with a contravention of s 115 of the Building Act 2011 (WA); however, BBH is not appealing the conviction or sentence imposed for that charge.
BBH is the owner of the Malaga property, which is zoned general industrial under the City of Swan Town Planning Scheme No 17 and includes a factory warehouse building and associated infrastructure. Steelmakers operates a steel fabrication business from the premises and has been the tenant and occupier of the property since late 2006. The unauthorised status of alterations and additions to the warehouse building lies at the heart of a dispute between the appellants and the City of Swan.
At the mention of the charges in the Magistrates Court on 30 January 2014, directors of the two corporations appeared in person, to offer pleas of guilty for all charges on behalf of the two corporations. Neither corporation had legal representation when these pleas of guilty were accepted, following which sentences were imposed.
Steelmakers, under amended grounds of appeal filed 27 June 2014, applies for leave to appeal against its sentence (a fine of $388,000), on two grounds. On the first ground of appeal, Steelmakers contends that, in effect, the learned magistrate erred in law whilst imposing sentence, by taking into account considerations wholly extraneous or irrelevant to the actual charge to which it entered a plea of guilty. On that basis, Steelmakers contends the learned magistrate's sentencing disposition miscarried. By a second ground of appeal, Steelmakers further contends that the sentence was manifestly excessive.
BBH seeks leave to appeal against its conviction for contravening s 214(7) of Planning and Development Act and also against the sentence imposed, a fine of $348,000, on two grounds. The first ground of appeal alleges the learned magistrate erred in law by convicting BBH of the offence of failing to comply with the direction given to it by the respondent under s 214 of the Act. By the second ground, BBH contends that its sentence was manifestly excessive.
I note, at the outset and for reasons which I will discuss, that these appeals present circumstances which are exceptional as regards: (a) appeals against conviction on pleas of guilty; (b) the admission of new evidence on appeal; and (c) the raising of a new point of law on an appeal.

Planning and Development Act 2005: Provisions underlying the complaints against BBH and Steelmakers

As regards BBH, it is necessary to set out part of the legislation BBH was charged with infringing, namely s 214(3) and (7) of the Planning and Development Act.
Relevantly, s 214 provides:
(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
…
(7)A person who -
(a)…
(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
As regards Steelmakers, I set out the terms of s 218(c) of the Planning and Development Act. It is contended Steelmakers infringed this provision (in a period between 30 May 2013 to 29 November 2013).
Section 218(c) says:
A person who -
…
(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.
Steelmakers conducted its appeal (only against penalty) on the basis of accepting that although it was a mere lessee of the Malaga property (from BBH), and the conditions imposed by the City of Swan under the planning approval issued to BBH (on 1 March 2013), nevertheless Steelmakers was, by reason of its occupation of Lot 63 under the leasing arrangements with BBH, personally bound to observe all relevant conditions. Steelmakers' appeal against penalty was conducted on that basis.

Preliminary observations

I propose to deal first with BBH's appeal, namely SJA 1012 of 2014, for two main reasons.
First, BBH's appeal has the more substantive ambit, in terms of challenging not only the fine imposed against it as manifestly excessive (ground 2), but also ‑ by ground 1 ‑ BBH raises a challenge, in somewhat unique circumstances, against the validity of the conviction upon its plea of guilty.
Second, as regard the chronological order of the alleged offences, the facts underlying the BBH prosecution and appeal, address an anterior temporal period, ie, between 23 November 2012 and 28 February 2013. That period of time is in contrast to the subsequent temporal period applicable to the charge against Steelmakers (occurring later, between 30 May 2013 and 29 November 2013).
In my view, both as regards BBH and Steelmakers, there should be leave to appeal on all grounds (see Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [55] ‑ [61]) and both appeals should be allowed. There are at least three fundamental drivers to this outcome:
(a)Before the learned magistrate, the charges against the two corporations were conflated. In effect, the charges were approached as one global event and were (wrongly) dealt with jointly, albeit Steelmakers and BBH were related corporations;
(b)The verbal presentation of material facts, as globally submitted by the prosecutor for the City of Swan to the learned magistrate was inadequate and, in many respects, obfuscatory. His address presented only a superficial glossing of the underlying facts, and directed almost no attention to the different underlying statutory provisions grounding the distinct charges against BBH and Steelmakers; and
(c) The corporate defendants entered pleas of guilty through attending individual directors, holding no legal qualifications, in circumstances where a competent lawyer acting would almost certainly have objected to what occurred on 30 January 2014.

Legal principles: Appeals against conviction on a plea of guilty

By ground 1 of its appeal notice, BBH seeks to have the court set aside its conviction. It is, of course, exceptional for any defendant, having voluntarily entered a plea of guilty, to effectively seek to resile later from that plea and ensuing conviction, by appeal (as BBH seeks to do here, by its ground 1 appeal challenging its conviction).
For the law in that regard, I mention observations of Steytler P in Vella v The State of Western Australia [2006] WASCA 129:
It is no easy matter for an appellant to persuade a court to set aside a conviction based on a plea of guilty. In such a case, the appellant must show that there has been a miscarriage of justice: Borsa v The Queen [2003] WASCA 254 at [20]; Hogue v The State of Western Australia [2005] WASCA 102 at [22]. The cases reveal that there are three well recognised circumstances in which courts are prepared to set aside pleas of guilty, being cases in which the appellant did not understand the nature of the charge or intend to admit guilt, cases in which, upon the admitted facts, the appellant could not in law have been guilty of the offence and cases in which the guilty plea has been obtained by improper inducement, fraud or intimidation and the like: Borsa at [20]; Meissner v The Queen (1995) 184 CLR 132 at 157 per Dawson J and Hogue at [22]. However, the circumstances which will amount to a miscarriage of justice are not closed and cannot be exhaustively listed: Borsa at [20] and Harman v Ayling, unreported; SCt of WA (Parker J); Library No 960633; 5 November 1996 at 5 [26].
Steytler P's observations were recently applied in Palumbo v The State of Western Australia [2014] WASCA 55 [33] (Buss JA); and see also Parker v The State of Western Australia [2014] WASCA 56 and Eley v Town of Victoria Park [2014] WASC 103.
Nevertheless, I am satisfied here that, as regards the disposition of the plea of guilty by BBH to the charge of contravening s 214(7) of the Planning and Development Act, the circumstances are exceptional and that there was a miscarriage of justice sufficient to warrant setting aside the conviction. The circumstances are exceptional because:
(1)in the time period originally stated for when the offence was supposed to have occurred (between 30 May 2013 to 29 November 2013), BBH had little or no culpability regarding this charge, because the City of Swan granted it a retrospective development approval, on 1 March 2013; and
(2)BBH, as a corporation, likely did not attain a proper understanding of the charge against it, once the underlying time period for the offence was amended (to between 23 November 2012 and 28 February 2013) at the hearing on 30 January 2014, when the learned magistrate ought, in all the circumstances, to have provided BBH a further opportunity to consider the implications of the amendment and to seek legal advice.
I address these issues further below. I also note that, as regards the circumstances that may support a setting aside of a plea of guilty, the material facts stated to the court by the prosecutor, do not constitute evidence going to the conviction of the appellant. Pursuant to s 129(3) of the Criminal Procedure Act 2004 (WA), the verbal statement of the material facts of the offence by the prosecutor occurs after the accused has pleaded guilty and is, therefore, for the purpose of sentencing.

End outcomes

As explained in the ensuing reasons, I would, in the end, allow both appeals. That leads, on my assessment, to my allowing BBH's appeal and setting aside its conviction in respect of the charge of failing to comply with a direction given to it under s 214(3) of the Planning and Development Act within 60 days (contrary to s 214(7)), pursuant to s 14 of the Criminal Appeals Act 2004 (WA).
But had it been necessary to resentence BBH, on a basis it succeeded only on its ground 2, because its sentence was manifestly excessive, then I would (in the circumstances as explained below) impose no penalty against BBH.
Steelmakers did not challenge its conviction against s 218(c) of the Planning and Development Act. Nevertheless, as regards a miscarrying of the sentencing process, Steelmakers' appeal ground 1 must be accepted.
Steelmakers has established that wholly extraneous sentencing considerations were (wrongly) taken into account by the learned magistrate. I would also accept ground 2. Hence for Steelmakers, it is necessary for the sentencing process to be re‑undertaken by this court. In the prevailing circumstances, I would, as I explain, impose a far lesser fine against Steelmakers.
The conditions infringed by Steelmakers turn out to be multifaceted. Critically, the conditions are not even mentioned in the prosecution notice. It emerged that one condition is an apparent failure by Steelmakers to procure BBH to execute a deed with the City of Swan. That deed first needed to be prepared by the solicitors for the City of Swan, before its subsequent execution by BBH (not Steelmakers) and the City. At root, this aspect of the condition breach grievance seems to distil to a gripe over someone first needing to put the City of Swan's solicitors in funds to cover the solicitors' costs of preparing the deed.
The deed was finally entered into as between BBH and the City, apparently on the day of the sentencing.
A second condition not fulfilled by Steelmakers, emerged as the required repairing or resurfacing of a small portion of the existing car park at its leased industrial premises at Malaga. As mentioned, the premises were owned by BBH, and occupied by Steelmakers under leasing arrangements with BBH. No issue was raised by Steelmakers disputing its obligation to satisfy the repair condition. But it took Steelmakers some time to find someone to perform the minor repair works to the Malaga premises car park.
Magistrate Roth, as regards BBH, imposed a fine of $300,000 plus a daily penalty, for 97 days non‑compliance, of $500 a day (a total penalty of $348,000). He then fined Steelmakers $300,000, plus a daily penalty of $500 per day over the period of 177 days, for a total penalty of $388,000.
As mentioned, there was a further charge against BBH, raising an infringement by BBH against s 115 of the Building Act, upon which BBH was convicted by its plea of guilty and fined $25,000. As that conviction and penalty was not the subject of any appeal I say no more about it.
I turn to the respective complaints and the underlying legislation grounding the infringements and the fines imposed in each matter.

SJA 1012 of 2014: the magistrate's disposition of the plea of guilty by BBH

The City of Swan prosecuted BBH for an alleged failure by it to comply with a direction - given pursuant to s 214(3) of the Planning and Development Act - within 60 days of being given the direction, contrary to s 214(7).
As originally framed, the prosecution notice against BBH contended the offence occurred 'between 30 May 2013 and 29 November 2013, both dates inclusive'.
That temporal averment was clearly wrong. A prosecution of BBH for this offence was untenable in that period, as will be apparent.
At the plea and sentencing hearing on 30 January 2014, BBH was represented by its director, a Mr Tana, acting in person.
Before BBH's plea was entered there was an application by Mr Naderbaum, acting for the City (see ts 4), to amend the prosecution period under the prosecution notice to an earlier period, namely, to between 23 November 2012 and 28 February 2013.
At this time an observation was made by the learned magistrate that, 'to some degree', that change 'actually works in the favour of BBH'. The prosecutor agreed. This was apparently said to be 'because it reduces the number of days … on which they were non-compliant' (seemingly referring to the issue of a daily penalty). No mention was made of any practical effects in changes to the time period for this offence, as regards the culpability of BBH for the alleged offence.
Mr Tana was informed as to the proposed amendment of BBH's charge via the learned magistrate, in these terms (ts 4 - 5):
The prosecution currently says that between 30 May and 29 November you failed to comply with a direction. The application is to change those dates so that they read 23 November 2012 to 28 February 2013, which in some ways actually operates in your favour because it reduces the number of days for which - for which Bayblue Holdings Pty Ltd was in contravention. Do you have any objection to the dates being amended?
Mr Tana did not object (ts 5).

Mr Tana was next asked whether a requirement that the prosecution serve an amended prosecution notice, could be waived. Mr Tana agreed to that course on behalf of BBH (ts 5).
On the basis of the now amended prosecution notice, Mr Tana was asked whether he (for BBH) understood the charge. He answered in the affirmative (ts 5). He was asked for BBH's plea. Mr Tana submitted the plea of guilty on BBH's behalf.
It will be necessary to more closely examine the terms of s 214(3) and (7) of the Planning and Development Act, in respect of the underlying contention of the City of Swan's charge that BBH failed to comply with a direction (within 60 days) to demolish some improvements (small extensions added on to the sides of an existing enclosure) said to have been unlawfully erected at BBH's Lot 63 premises at 23 Montgomery Way, Malaga.
The prosecution notice provided very little information for the charge against BBH. It stated merely a location where and time period when the offence was alleged to have occurred, then some basic particulars of the statutory provisions that were contravened:
Within the district of the City of Swan [BBH] failed to comply with a direction given to it under Section 214(3) of the Planning and Development Act 2005 within 60 days of being given the direction, contrary to Section 214(7) of the Planning and Development Act 2005.
This is not say the prosecution notice was defective, given the requirements for the contents of prosecution notices as set out in sch 1 of the Criminal Procedure Act. However, it is significant contextually that the prosecution notice did not state when the direction under s 214(3) was given to BBH, and particularly as it also appears (see ts 33 ‑ 35) that no written statement of material facts was served on the appellants with the prosecution notice. Nor was anything more provided to the learned magistrate.
The offences were simple offences. Thus, pursuant to s 35(6) of the Criminal Procedure Act, there is no requirement for a prosecutor to provide a written statement of material facts to an accused. But a lack of a clear expression of the relevant facts underlying this offence as charged, eg the date when the direction was given and the date when the City of Swan granted retrospective planning approval, did not aid in seeing that both BBH and the learned magistrate held a proper understanding of the implications of the prosecution's application to amend the time period for the charge against BBH.
Other factors, already discussed, bear upon the issue of whether BBH could be said to have had a proper understanding of the nature of charge as amended. First, the application to amend the time period underlying the offence, was only made verbally by the prosecutor at the time the plea was to be taken, exposing Mr Tana as a non‑lawyer, to think on his feet, if he could, as to the implications of the change.
Second, the comments of the prosecutor and the magistrate regarding the proposed amendment both indicated to Mr Tana that the amendment could be said to benefit BBH. Third, there was no mention of how the change in the time period might alter the substantive nature of the charge and, specifically, how it might alter the culpability of BBH.
These circumstances are significant, as regards prejudice and injustice BBH might have suffered due to the amendment being allowed. The original time period for the offence (30 May 2013 to 29 November 2013), left it open to BBH to defend on the basis that it could not in law have been guilty of the offence, given the retrospective development approval it received from the City, on 1 March 2013. Even if BBH had nonetheless intended to plead guilty, it certainly could have made a strong submission in mitigation along such lines.
For the statutory framework governing a plea of guilty by an accused, s 59(2) of the Criminal Procedure Act says, as regards the procedure for dealing summarily with a charge for a simple offence:
(2)Before requiring the accused to plead to the charge, the court must ‑
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it; and
(b)be satisfied the accused understands the charge and the purpose of the proceedings; …
Section 129(2) of the Criminal Procedure Act further provides as regards a plea of guilty that:
(2)Unless the plea is a written plea given to a court of summary jurisdiction, the court must not accept the plea unless ‑
(a)the accused is represented by a legal practitioner; or
(b)if the accused is not so represented, the court is satisfied the accused understands the plea and its consequences.
Two points may be drawn from this framework. First, the legislation clearly indicates that the court ought to consider whether an accused has had the time to consider a charge stated in a prosecution notice and to seek legal advice about it. In the present circumstances, the court ought to have recognised a potential for this amendment to substantially alter the character of the offence. Second, a court ought to afford particular attention to whether a self‑represented person representing a corporation understands the plea and its consequences.
Here, the learned magistrate ought, in the circumstances, to have afforded Mr Tana, appearing in person to represent BBH, an opportunity to consider the charge as amended and to seek legal advice about it.
The learned magistrate was not aided, as regards the sentencing process for the offence to which BBH ultimately pleaded guilty, by the prosecution's unhelpful and, indeed, obfuscatory recounting of the material facts. Of particular concern is the manner in which what are distinct and quite complex planning offences alleged against BBH and Steelmakers, were rolled together. The separate charges against BBH and Steelmakers required individual attention. The charges were not, on my assessment, ever fully appreciated in terms of their ramifications, by the learned magistrate.

Steelmakers: SJA 1011 of 2014

The City of Swan's complaint against Steelmakers was that (between 30 May 2013 and 29 November 2013, both dates inclusive) it had 'carried out development which was required to comply with the City of Swan Local Planning Scheme No 17 and failed to comply with a condition imposed under the Scheme', contrary to s 218(c) of the Planning and Development Act 2005. (my emphasis)
Steelmakers' plea of guilty to this charge was submitted verbally through its director, a Mr Eric Birighitti (ts 2). Mr Birighitti, like Mr Tana, is also not a legal practitioner.
The infringement dates under this complaint were not amended.
As is evident, the infringement period underlying the Steelmakers s 218(c) charge (30 May 2013 to 29 November 2013), was well after when any relevant 'development' had been 'carried out'.
There were actually two unapproved 'developments' to an existing shed‑like structure that were of concern to the City. The first had been carried out by a previous land owner, sometime before October 2006. The second was admittedly carried out by Steelmakers in 2006 (see Mr Birighitti's affidavit, sworn 9 June 2014, pars 15(a) and (b)). The prosecution against Steelmakers was for its non‑compliance with 'a' condition.
As things emerged, the City's non‑compliance with condition(s) grievance against Steelmakers, concerned more than an asserted failure to comply with 'a' (ie, one) condition. At least two conditions were complained of as not met by Steelmakers in a period after 30 May 2013.

New evidence on the appeals and implications

Application was made on behalf of both appellants to adduce new evidence, at these appeals (see appeal ts 56 - 57).
For BBH, leave was sought to read into evidence an affidavit of Nicola Tana, sworn 9 June 2014.
For Steelmakers, leave was sought to rely upon the affidavit of Eric Birighitti, also sworn 9 June 2014.
Mr Tana's affidavit confirms and seeks to rely upon facts deposed to in Mr Birighitti's affidavit, for the purposes of BBH's appeal.
Leave to rely on new evidence was opposed by the respondent (appeal ts 22). Nevertheless, in anticipation, some responding affidavits were sworn and filed on the City's behalf, by a William Richard Riley of 4 July 2014. This was on a provisional basis that leave would be sought to rely on those affidavits by the City, in the event that the appellant's proposed materials were received.
The evidence was 'new' in the sense that, with reasonable diligence, it could have been adduced at the hearing on 30 January 2014: DPJB v The State of Western Australia [2010] WASCA 12 [61].
Ordinarily, it is unusual for evidence that is not 'fresh' evidence, to be received on an appeal, especially after pleas of guilty: see Rinaldi v The State of Western Australia [2007] WASCA 53 [84]; Genovese v City of Perth [2012] WASCA 89 [26]- [27]; Geary v Shire of York [2014] WASC 224 [24] ‑ [27] (Chaney J).
Nevertheless, in what I assess to be uniquely derailed circumstances presenting here, the new evidence from all parties will be received, in the interests of justice. In brief, this additional evidence, demonstrates:
(a)The City of Swan, pursuant to s 214(3) of the Planning and Development Act, had given a notice to BBH on 18 July 2011, items 2 and 4 of the schedule to that notice combining, to require that extensions to the existing warehouse located on the western portion of [Lot 23] and being the structures on the eastern side of the warehouse which were shown hachured on a plan attached to the notice as 'Annexure 1', 'be removed, and the warehouse …, reinstated so as to comply with the approved plans'.
For the purpose of greater clarity, I will attach as schedule 1 to these reasons page 35 of Mr Birighitti's affidavit (being part of his attachment EB10), showing two cross‑hatched areas that were the unapproved extensions on the plan accompanying that 2011 notice from the City. I refer to the City's 18 July 2011 notice, as its 'Tear Down' notice.
(b)By 24 November 2011, the City had received the application of BBH (identified by the City as application DA‑684/2011) seeking, in effect, the City's retrospective development approval, in respect of the (up to that point) unapproved alterations, which were the subject of the 18 July 2011 Tear Down notice (attachment EB 12 of Mr Birighitti's affidavit).
(c)In response to the 24 November 2011 application of BBH, the City had requested certain information, in order for BBH's (retrospective) application for approval to be progressed and evaluated. The City's officers had engaged in correspondence with Mr Birighitti from at least February 2012 to February 2013 (see attachments EB 15 ‑ 19 at pages 50 ‑ 60 of Mr Birighitti's affidavit).
(d)On 1 March 2013, the City of Swan granted, subject to conditions, a retrospective approval to BBH, to commence development, in accord with cl 11.3.2 of the City's local planning scheme (attachment EB19, page 61 of Mr Birighitti's affidavit).
(e)Seven compliance conditions had been stipulated under the City's notice of determination of BBH's application for the (retrospective) planning approval. I will attach these conditions as a schedule 2 to the reasons (found at pages 62 - 63 of Mr Birighitti's affidavit). Most relevant to present circumstances are conditions 2, 5 and 6. They bear directly upon the City's eventual non‑compliance with conditions complaint, advanced against Steelmakers.
(f)The two unapproved extension developments that had been carried out on the Malaga premises, were relatively minor: see par 15(a) of Mr Birighitti's affidavit.
They, for purposes here, are the most significant further aspects of the information arising from the extra affidavit material.
That extra information ought to have formed part of the underlying material facts provided to the learned sentencing magistrate. Had it been provided, two critically important, but overlooked, key features would have been apparent (even for circumstances where both BBH and Steelmakers were unrepresented during the plea and sentencing process).
First, the proposed temporal amendment to the BBH prosecution notice, in respect of the alleged infringement against s 214(3), was not at all favourable to BBH. The essence of that charge was for failing to comply with a direction (of the City) to remove two unapproved works alterations and to reinstate the original warehouse.
Whatever might be said about BBH's failure to comply with a 'Tear Down' direction by the City in a period immediately after the notice was issued on 18 July 2011, the underlying situation changed over time. Once BBH had made an application for a retrospective development approval from the City, as at 24 November 2011, then at least from a non‑compliance culpability perspective, the position of BBH would need to be evaluated differently. BBH's belated application to the City for planning approval for these two alterations was now lodged and pending. The BBH application was then under serious consideration by the City, over what became a long interval, between 24 November 2011 to 1 March 2013.
The underlying factual situation then altered again, from 1 March 2013. At that time, the City did issue what was, in effect, its retrospective approval to BBH for it to commence development, in respect of what were the two formerly non‑compliant warehouse extensions.
The original charge against BBH, on a basis of its non‑compliance with a direction of the City to remove the unauthorised alterations during a period after development approval had been granted (ie, between 30 May 2013 and 29 November 2013), was always inherently misconceived.
As originally framed, that charge was doomed to be dismissed, once a basic level of understanding towards the underlying facts (and in particular, the timing of various events) was achieved by all parties concerned (ie, prosecutor, magistrate, BBH).
Amending the infringement period of the original BBH charge to an earlier period, which ended the day before the City's retrospective approval issued (ie, 1 March 2013) had subtlely rehabilitated an otherwise flawed complaint against BBH. In effect, the amendment 'shifted the goalposts', to a time period approximately three months and one week, prior to the City's approval being granted.
The temporal amendment therefore revived the otherwise wholly misconceived charge against BBH.
A second aspect that would have been apparent if the extra information had been made available goes to the seriousness of the offence as amended. Even as amended, viewed from a perspective of BBH's culpability in the revised period (ie, 23 November 2012 to 28 February 2013) as regards non‑compliance with the City's direction to remove the alterations, the revised infringement alleged against BBH, was still highly trivial. It would make no sense for BBH in that revised time frame to 'tear down' the two unauthorised alterations - whilst BBH was then awaiting (since 24 November 2011) a decision from the City of Swan for (retrospective) approval, and then ultimately granted to BBH on 1 March 2013. In that amended period Mr Birighitti had been corresponding with planning officers at the City of Swan in, for example, November 2012 and February 2013 (see EB 17 and 18 of Mr Birighitti's affidavit).
If a development approval had ultimately not been granted by the City to BBH, one might just rationally comprehend a basis for issuing a non‑compliance complaint to BBH for its inaction across that period. But given development approval did issue on 1 March 2013, in those circumstances, the rationale for prosecuting BBH, in terms of a non‑compliance by not removing the unauthorised structures during a 15‑month waiting period whilst the City was evaluating BBH's application, then approved it, defies logic.
Regrettably, none of this seems to have been made remotely apparent to the learned magistrate. A bland, rolled up verbal submission put against BBH and Steelmakers by the prosecutor as regards what were discrete charges and distinct provisions of the Planning and Development Act was, at best, unhelpful.
Significant parts of the prosecutor's rolled together recounting of the facts (ie, for charges against BBH and the charge against Steelmakers) made too much of an asserted culpable transgression scenario of ongoing non‑compliance by both corporations, spanning periods prior to the specified infringement periods on the prosecution notices as drawn and then, concerning BBH, as amended. (For the charge against Steelmakers, the infringement period in terms of its alleged failure to comply with conditions applicable to the development of the premises, spanned a later temporal period, between 30 May 2013 and 29 November 2013.)
I will set out some extracts of the prosecutor's inadequate narration of material facts to the learned magistrate (see ts 6 - 10):
Bayblue Holdings Pty Ltd is the owner of the subject property at 23 Montgomery Way in Malaga. The property has been [sic] area of approximately 8,000 square metres and is zoned general industrial under the City of Swan Town Planning Scheme No 17. There is an existing factory warehouse building on the property, and the company Steelmakers Proprietary Limited is the tenant and occupier of the property. In 2007, the City became aware that alterations and additions had been carried out to the factory warehouse building on the property. Officers of the City spoke to a director of Steelmakers, who's Mr Birighitti, who assured the City appropriate applications for retrospective approval of the structures would be made.
Despite those assurances, no applications were forthcoming. And in 2009, the City wrote to both Bayblue Holdings and Steelmakers requesting applications to be made in order to rectify the matter and attempt to formalise the alterations and additions.
…
PROSECUTOR: There is a request to try and formalise things. Nothing happened. Then in 2009, the City took the matter into its own hands, and if you like, and said, 'Where's an application?' and 'Are you making an application?'
…
PROSECUTOR: So. When - the City requested applications to be made to attempt to formalise the works, the companies were asked by an officer of the City why no application had been made. And Mr Birighitti advised the officer that the matter had simply slipped his mind. Applications for retrospective approval were finally submitted by Bayblue Holdings in late 2009 but the City was unable to process those applications because the company failed to supply various additional information required by the City in order to process them.
The matter remained unresolved throughout 2010 despite further contact between the City and both companies to attempt resolve the matter by getting the information the City required to start processing things. As a result nothing occurred. So in July 2011, the City gave Bayblue Holdings a formal direction under s 214 of the Planning and Development Act, and also a formal notice under s 401 of the Local Government (Miscellaneous Provisions) Act, which was then in force - it was the precursor to the Building Act - requiring the removal of the unapproved alterations and extensions to the factory warehouse building.
In August 2011, Bayblue Holdings applied for a further building approval certificate for the alterations. And in November 2011 the company applied for retrospective planning approval for the alterations.
…
So as a result of those applications having been received, the City held off taking any action to enforce the formal notices. There was then a number of requests by the City for further information relating to the applications. And the City ultimately granted retrospective planning approval subject to a number of conditions, and that was on 1 March 2013. So there was, again, a considerable time lapse trying to get the requisite information from the applicant. But on 1 March 2013 retrospective planning approval was granted. However the application for the building approval certificate was refused. That was in March 2012 [sic 2013] for the same reasons, the position remains that there's no building approval in place for the alterations and the extensions to the factory warehouse building to the present time …
HIS HONOUR: So when you say for the same reasons, that was because of lack of information?
PROSECUTOR: Lack of information yes, the other aspect is that it wouldn't be normal for planning approval to precede any building approval. Because if you don't get planning approval, you won't get building approval …
There followed inspections of the property by officers of the City on 30 May 2013, and ongoing throughout the prosecution period, which revealed the company Steelmakers was continuing to operate its business at the property as it had always done without those conditions having been complied with. By this time in view of the continued failure to comply with the City's planning and building requirements, the City felt it was left with no option but to commence these proceedings.
…
My instructions are that in relation to the condition breach, the kerbing, line marking of the parking areas has now been done. Nothing was done until the prosecution proceedings were commenced. The building approval certificate, which is required, has not been issued, so there's no BOC in place. And there was a deed of agreement that had to be signed in relation to the matter, and that was - it was picked up from our office, because our office prepared it - I think this morning - for signature. So belatedly that's in place.
…
And, in fact, the City sees the gravamen of these offences as simply being the time lapse … of year after year of non-compliance. So the range of penalties for the Steelmakers Pty Ltd proceeding is a maximum fine, being a corporation of $1 million. And potentially a daily penalty of $125,000 a day. (my emphasis in bold)

The prosecutor was, of course, referring the learned magistrate to s 40(5) of the Sentencing Act 1995 (WA), which provides:
Except where a statutory penalty is expressly provided for a body corporate, a body corporate that is convicted of an offence a statutory penalty for which is or includes a fine is liable to a fine of five times the maximum fine that could be imposed on a natural person convicted of the same offence.
Section 223 of the Planning and Development Act (general penalty provision) reads in terms:
Unless otherwise provided, a person who commits an offence under this Act is liable to a fine of $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues.
The effect of s 40(5) of the Sentencing Act as regards a corporation, delivers potential for a fivefold increase in the level of the s 223 Planning and Development Act penalties where a corporation is the offender: see Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 [7].
Five observations can be rendered regarding the inadequate narration of the material facts by the prosecutor:
(a)There was no proper or confined focus upon applicable timeframes under each complaint, even as amended, concerning BBH. Instead the prosecutorial emphasis, as may be seen, was quite irrelevantly upon 'year after year' of non‑compliance (ts 10);
(b)Hardly anything relevant was said about the precise nature of the alleged infringing conduct by each corporation;
(c)Neither defendant was charged with a failure to supply information to the City, on a timeous basis;
(d)The prosecutions brought by the City should not have been advanced as some sort of 'Nailing Al Capone' like 'square up', for perceived earlier town planning wrongs in the past by the two corporations dating back to 2009.
(e)BBH's failure at the time to secure a further building approval (as contrasted to its obtaining of the City's planning approval), was irrelevant.

The learned magistrate's remarks when convicting and sentencing BBH and Steelmakers

Submissions on behalf of BBH by Mr Tana (see ts 15) when asked by the learned magistrate whether he would like to say anything on behalf of BBH, were not to the point. He had merely responded:
I think Eric [ie, Mr Birighitti] has covered most of it.
For Steelmakers, its director Mr (Eric) Birighitti had put the first mitigation submission as to penalty, for Steelmakers. His submissions (see ts 12 - 14) were also less than helpful. This is not a criticism, but it reflects a reality that these two corporations were not legally represented and sustained a prejudice by that omission.
Had BBH and Steelmakers been competently represented on 30 January 2014, their lawyer would surely have recognised:
(a)As far as BBH was concerned, the proposed amendment to the prosecution notice by the prosecutor would revive a wholly defective charge, in terms of the applicable underlying time periods for the offence;
(b)BBH carried negligible culpability for not demolishing the unapproved alterations the subject of the City's Tear Down Notice, during a period whilst BBH was awaiting a decision from the City on retrospective planning approval, an approval which was then successfully and retrospectively granted by the City on 1 March 2013; and
(c)A verbal recitation of the material facts from the prosecutor for the City, emphasising 'year after year of non-compliance' (ts 10) and 'unsatisfactory situation of corporate disobedience to planning laws as regards planning provisions dating back to 2007', was an unfocussed and extravagantly irrelevant submission - mostly of rhetoric, especially once the correct time periods governing both complaints were appreciated;
(d)Insofar as Steelmakers was concerned, the governing timeframe for its prosecution (ie, 30 May 2013 to 29 November 2013) related to a period two months after BBH had actually obtained planning approval from the City (on 1 March 2013). Consequently, no punishment on a plea of guilty could sensibly have been directed Steelmakers' way, as regards any 'year after year of non-compliance' (see ts 10);
(e)For Steelmakers, it was necessary to pay close attention to the actual conditions to BBH's planning approval. The precise conditions alleged as not met by Steelmakers needed to be evaluated, as regards Steelmakers' capacity to, in effect, procure BBH's compliance with the need to enter a deed with the City, and then to get the repair works completed to a car park at the Malaga premises.
I turn to the Steelmakers complaint and the two conditions it was alleged to have breached.

Steelmakers

The timeframe for this complaint spans an (almost) six‑month interval, between 30 May 2013 and 29 November 2013.
The Steelmakers prosecution notice, as framed, does not identify any specific condition(s) imposed under the Swan Local Planning Scheme No 17 and which it was alleged Steelmakers had not complied with. In my view, this was wholly unsatisfactory. That void led to the two relevant conditions ultimately said not to have been met by Steelmakers only coming vaguely into focus, during the prosecutor's rolled up address on 30 January 2014.
The first condition complained as not complied with related to the deed needed to be entered as between the City and by BBH (not Steelmakers). But first, the deed had to be drafted by the solicitors for the City of Swan. The deed had, it seems, only been entered into by BBH and the City, on the receipt of the pleas before the magistrate, on 30 January 2014.
Out of the prosecutor's address it now emerged that the City was also complaining about a delay by Steelmakers at the Malaga premises to implement some kerbing and line marking repair work in parking areas, near the warehouse (again carried out shortly before 30 January 2014).
By reference to the Birighitti affidavit it can now be seen (only at the appeal) that the City was complaining Steelmakers had not complied with condition 2 in the planning approval the City had granted to BBH on 1 March 2013 (as regards the deed), plus non-compliance with conditions 5 and 6 (as regards repairs to existing parking areas and vehicle parking area access and circulation areas being sealed, kerbed and drained) (see attachment EB 19).
None of that detail was at all apparent on the face of the Steelmakers' prosecution notice, or from the materials facts as articulated by the prosecutor at the sentencing, or from particulars to the charges (see ts 34 - 35).
The grounds of appeal by Steelmakers do not challenge its conviction upon this charge. Nevertheless, it contends as to penalty, the learned magistrate erred in law (ground 1) by:
[T]aking into account extraneous or irrelevant considerations when it sentenced the appellant being considerations which were only relevant to a charge not brought against the appellant, namely contravention of subsections 218(a) or [218](b) of the Planning and Development Act 2005 (WA) such that the sentencing discretion miscarried.
Steelmakers' second ground contends the $348,000 fine it received, was manifestly excessive. (It is uncontroversial both Steelmakers and BBH were relevantly, first offenders.)
By my assessment, ground 1 must be upheld, as regards Steelmakers. The conclusion necessarily follows, once one has regard to what were mostly irrelevant matters submitted (globally) by the prosecutor to the learned magistrate then, second, the remarks of the learned magistrate under his sentencing disposition concerning Steelmakers (sentencing remarks, ts 15 - 20): see Warren v Van den Berg [2004] WASCA 32 [15].
It is apparent the learned magistrate was heavily influenced, as might be expected, by what was mostly irrelevant rhetoric from the prosecutor, concerning asserted global non-compliances by both corporations across wholly irrelevant earlier time periods.
The learned magistrate needed to have focussed upon the specific planning law transgressions during the proper time periods of infringement complained of ‑ once ascertained. He was certainly not helped by the inadequate submissions of the prosecutor, nor by what was said to him by legally unqualified directors of Steelmakers and BBH.

The sentencing dispositions of the learned magistrate towards BBH and Steelmakers

The learned magistrate's sentencing remarks are found at between pages 15 - 20 of the transcript, following the rolled together submission in respect of both complaints, by the prosecutor.
I extract the following remarks in circumstances, where I reach a view, ultimately, that due to the unsatisfactory way in which the sentencing process for both defendants unfolded, his Honour at no point gained a proper appreciation of the correct time periods applicable in respect of the Planning and Development Act charges as against both BBH and Steelmakers.
The learned magistrate said at ts 16:
Come [sic] between 2007 and 2009 it doesn't appear anything was done. There was a promise in 2007 to get the retrospective approval. That retrospective approval - that application wasn't received. And in 2009 the council returned, spoke again to Steelmakers, who indicated ‑ that apologies were given, it had simply slipped their mind.
This observation, of course, was irrelevant, other than perhaps by way of the broadest background to the Planning and Development Act charges.
The learned magistrate continued (ts 16):
It is common ground that there were substantial conversations and discussions between the parties in 2010. But no further steps were taken in relation to making the application for retrospective approval in relation to the shed.
'[S]ubstantial conversations and discussions' might have been relevant to a different charge of failing to comply with the City's directions under s 214(3) at some earlier time, after the direction was first given. But the observation was irrelevant to the amended time period for the BBH charge, after an application by BBH for retrospective approval was lodged, and was under consideration by the City.
These remarks by the learned magistrate followed at the foot of ts 16:
So by 2011, there was still no - the information necessary to process the application and no further applications in relation to the building condition or a retrospective grant of the building licences had been made.
Again it is necessary to point out BBH was not facing any charge of failing to supply information requested by the City on a timeous basis. The learned magistrate's observation picked up the submission of the prosecutor about the City's need for information. But this was wholly irrelevant, as regards a non‑compliance infringement in the revised time period the subject of the BBH complaint.
The transcript at ts 17 records the learned magistrate as observing:
There was a request for further information which was not forthcoming. On 1 March 2012 [sic] planning approval was eventually granted but the application for the building approval was again refused due to lack of information. It doesn't appear that anything subsequently occurred until the commencement of these proceedings by the [City].
At the end, it is clear the sentencing process, as regards BBH, was seriously derailed. If the learned magistrate ever did have an appreciation of the correct date at which planning approval issued, allowing for his mistake as to '1 March 2012' (ie, 1 March 2013), his substantive reference to a failure (of BBH) to obtain building approval due to a lack of information, was again, irrelevant.
In a time period where there was a pending application by BBH for planning approval (an approval that would necessarily precede any building approval in the amended complaint period of 23 November 2012 to 28 February 2013), the observations were not to the point.
The learned magistrate referred to the car parking bays which needed to be upgraded, resurfaced and remarked and a vehicle parking area access and circulation area. At (ts 17) he said:
Through the period of this entire time, the Steelmakers continued to carry on business at the premises. As I said, the prosecution have finally issued notices in respect of these matters.
The observations also show a derailment of the sentencing process, as regards Steelmakers. There was no evident reason for Steelmakers as a lessee in possession not to continue to carry on its business at the Malaga premises, in the period between 30 May 2013 and 29 November 2013. There was no suggestion that what were always relatively minor (as I would assess it) outside touch-up resurfacing and remarking work to small areas of a car park, raised any sort of public safety hazard.
Nor was there anything before the learned magistrate to indicate there had been any communication by the City after 1 March 2013, sent to either BBH or to Steelmakers suggesting that Steelmakers' business at the Malaga premises not be carried on from the premises ‑ until what were these relatively minor car park surfacing works (or the entry of a deed which BBH needed to enter to confirm these arrangements with the City) were first completed.
The underlying and recurrent suggestion by the prosecutor towards some defiant commercially profit driven refusal against doing this work but to carry on business regardless, and effectively thumbing their noses over time at inconvenient planning conditions, presents, on close analysis, as a total beat-up. There is no reason why the minor car park touch-up works and the entry of a deed by BBH could not be actioned over a reasonable time, in conjunction with Steelmakers still carrying on their business from the Malaga premises, in the interim. If that was a problem, the City could have said so. It did not.
As was recognised, both conditions ultimately were eventually satisfied, at least by or on 30 January 2014, by, or at the behest of, Steelmakers.
The learned magistrate concluded (ts 17):
There is no real explanation as to why the companies did not comply with the actual direction.
But I seriously doubt the learned magistrate ever attained a proper comprehension of the nature of the underlying conditions not met by Steelmakers in the period 30 May to 29 November 2013. Nevertheless, I hold a considerable sympathy for him, bearing in mind the regrettably unhelpful submissions he received from the prosecutor, compounded by a lack of relevant assistance from the director representatives of the two corporations.
Nevertheless, at the end, the learned magistrate did wrongly roll together, as I see it, the distinct BBH and Steelmakers charges, in terms of assessing an aggregate corporate culpability. He ought, as I have said, to have been evaluating the offences discretely. By doing that he may have gained a better prospect of noticing the separate time periods applicable to discrete Planning and Development Act contraventions, the subject of each prosecution notice.
Insofar as Steelmakers contends by its appeal (ground 1) that extraneous and irrelevant considerations were taken into account by the learned magistrate, when it was sentenced, that ground I conclude, is overwhelmingly established. Accordingly, it becomes necessary to resentence Steelmakers. I also uphold Steelmakers ground 2, on the basis that its global fine of $388,000 was, in the presenting circumstances, manifestly excessive.

BBH's appeal grounds challenging conviction and penalty

As regards BBH, I do not assess within its two appeal grounds anything that is analogous to the extraneous or irrelevant consideration ground as postulated by the Steelmakers ground 1. If I had, I would have allowed BBH's appeal against sentence on that basis alone. On my assessment, the learned magistrate did not come to grips with the fact that the, as amended, non‑compliance period under the prosecution complaint against BBH was now redirected to a time period whilst BBH was legitimately awaiting the City's decision on retrospective planning approval, and which approval was ultimately obtained on 1 March 2013.
But BBH raises other grounds which, as will be seen, lead to that same outcome.
Ground 1 of BBH's grounds of appeal seeks to raise a challenge of law not raised by it before the learned magistrate.
The legal point is essentially that the learned magistrate erred in convicting BBH, because the unapproved alterations (development) in respect of which the City's 'Tear Down' notice of 18 July 2011 was issued (ie, being the cross‑hatched areas on the plan scheduled to these reasons) were not actually works ever undertaken by BBH (see Schedule 1 to these reasons).
The extra material received in these appeals from Mr Birighitti, establishes that the unapproved alterations at the Malaga premises had in fact, been works carried out first, by a previous owner of the land (as regards the larger of the two cross-hatched areas on the plan). Next, the second alteration in relation to the other cross‑hatched area was, as Mr Birighitti explained, carried out by Steelmakers.
In other words, relevantly, neither of the unauthorised alteration works at the Malaga premises had actually been works done by BBH.
On that basis, it is now contended for BBH that there was an error of law in convicting BBH because, on a proper construction of s 214(3), a valid direction to remove a development, can only be validly given to the 'owner or other person who undertook the development' (BBH appeal ground 1(c)). It is now contended BBH did not meet either limb of that description.
The submission of law, of course, was not put on behalf of BBH before the learned magistrate. Instead the plea of 'guilty' was received. Ordinarily, in the face of a considered plea of guilty, even submitted through a layperson, it is doubtful whether leave to advance for the first time on an appeal such a late legal argument would be allowed.
In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91, the Court of Appeal of Western Australia has said:
… the High Court has twice described the circumstances in which a party will be allowed to raise a new point on appeal as 'very exceptional'. Such a course will only be permitted if two requirements are met. First, the interests of justice must require determination of the new point. Second, there must be no prejudice to the party against whom the new point is taken [52].
The Court of Appeal went on, at [53], to observe that, as regards situations in which an appellant seeks to adduce new evidence:
There are a number of cases which establish that these exceptional circumstances will not exist where the point, if taken below, might have resulted in additional or different evidence being led: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438-439; Green v Sommerville (1979) 141 CLR 594 at 608; O'Brien v Komesaroff (1982) 150 CLR 310 at 319.
But as I noted earlier, these appeals do present circumstances that, in several respects, are exceptional. In particular, the BBH appeal does not present to me as a situation in which either: (a) a conviction followed a trial, in which charges were properly framed and ventilated by a prosecutor and adequately considered by the trial judge; (b) a judicial officer was afforded the requisite material facts to properly decide the issue; or (c) a 'settled pattern of litigation' between the parties could, by virtue of pleadings and submissions, be said to exist: Doherty v Murphy [1996] 2 VR 553; Findlay v State of Victoria [2009] VSCA 294; McLennan v McCallum [2010] WASCA 45.
Given the overall underlying unsatisfactory circumstances and an effective derailment of the proceedings before the learned magistrate, in circumstances I have now described, I am led to assess the present case as exceptional and for it to be in the overall interests of justice to allow BBH leave to advance this legal argument. I see no prejudice to the respondent, which was fully prepared through counsel to deal with the argument on the appeal, both factually and as to the underlying law. That is in circumstances where, on my assessment, BBH has suffered a real prejudice, when it entered its plea of guilty to a flawed charge that was amended at the 11th hour, on 30 January 2014. And as now seen, Mr Tana, a layman, was wrongly told the amendment was to the advantage of BBH when, plainly, it was not.

Ground 1 of BBH's ground of appeal is:
1.The Magistrate erred in law in convicting the accused/appellant of the offence of failing to comply with a direction issued to the accused/appellant under section 214 of the Planning and Development Act 2005 dated 18 July 2011 (Section 214 Direction) in that:
(a)the Section 214 Direction was issued in relation to a development comprising alterations to an existing, previously‑approved factory/warehouse on the Land consisting of the enclosure and extension of a section of open, roofed storage area (Development), requiring the accused/appellant to remove the Development;
(b)the Development was not undertaken by the accused/appellant;]
(c)pursuant to section 214(3) of the Planning and Development act 2005, a direction under that section can only be issued to an owner who undertook the development;
(d)accordingly, the Section 214 Direction was not validly issued to the accused/appellant or, alternatively, the accused/appellant was not obliged to comply with the Section 214 Direction.
The essence of the legal point presses the interpretation towards s 214(2) and (3) reached by the State Administrative Tribunal (SAT) in Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87. That was a decision of SAT Senior Member Mr D R Parry (now Judge Parry).
The 2009 Lafou decision effectively accepts BBH's advocated interpretation towards s 214(2) and (3).
As summarised by the tribunal in Lafou at [3], the position was:
A direction can only be given to a landowner who undertook unlawful development or to any other person who undertook unlawful development. A direction cannot be given to a landowner who acquired ownership after unlawful development was undertaken and who did not itself undertake the unlawful development.
The reasoning underlying BBH's advocated interpretation of s 214(2) and (3) emerges under the observations of the tribunal at between [36] and [42] in Lafou. It is convenient to set out those passages in full:
36.Section 214(3) of the PD [Planning and Development] Act authorises a responsible authority to give a direction to 'the owner or any other person who undertook the [unlawful] development'. Lafou argued that, on its proper interpretation, this expression means that a direction may only be given to a landowner who:
•was the owner of the land at the time when the unlawful development was undertaken on the land; and
•itself undertook the unlawful development on the land.
37.In contrast, the Town argued that s 214(3) of the PD Act authorises a responsible authority to give a direction to a landowner irrespective of whether it was the owner of the land at the time when unlawful development was undertaken on the land and whether it undertook the unlawful development or not. The Town submitted that, if it had been intended that a direction under s 214(3) of the PD Act could only be given to the person who undertook the unlawful development, then it would have been unnecessary for the words 'the owner' to appear in the subsection, as the owner would automatically be caught in the event that it undertook the development. The Town submitted that the fact that s 214(3) of the PD Act specifically provides that a direction can be given to 'the owner', 'makes it clear the legislature intended a direction given pursuant to that section could be given to either the owner of the land upon which the development was carried out or the person who actually undertook the development'. Furthermore, the Town submitted that the interpretation suggested by Lafou would result:
in there being no means of remedying unlawful development once ownership of land upon which the unlawful development had been carried out changed or where an owner refuses to let a person who carried out unlawful development on their land without their knowledge to re-enter the land to carry out remedial works.
38.Read in context, the words 'who undertook the development' in s 214(3) of the PD Act (and the words 'undertaking that development' in s 214(2) of the PD Act) qualify all of the preceding words 'the owner or any other person', and not just the immediately preceding words 'any other person'. A direction may only be given under s 214(3) of the PD Act to the owner who undertook the development or any other person who undertook the development. Similarly, a direction may only be given under s 214(2) of the PD Act to the owner undertaking the development or to any other person undertaking the development.
39.It is correct, as the Town submitted, that it would have been sufficient to convey this meaning for the Act to say 'the person who undertook the development', in place of 'the owner or any other person who undertook the development' in s 214(3) of the PD Act, and 'the person undertaking that development' in place of 'the owner or any other person undertaking that development' in s 214(2) of the PD Act. However, the word 'other' indicates a clear link between 'the owner' and the qualification of having undertaken or undertaking the development. For the Town's proposed interpretation of the meaning of the provision to be correct, the word 'other' would have to be ignored. Further, while it is strictly unnecessary for the words 'the owner' to appear in the section, because of the words that follow, it is, nevertheless, understandable that Parliament would have specifically referred to 'the owner', as it will often be the owner who undertakes development on the owner's land.
40.It also follows from the requirement that 'the owner' undertook or is undertaking development that 'the owner' must be the landowner at the time when the development was or is undertaken, and cannot extend to a subsequent owner. Further support for this interpretation is found in s 214(4) of the PD Act, which enables a responsible authority to give directions under s 214(2) and s 214(3)(a) and s214(3)(b) of the PD Act 'in respect of the same development and in the same instrument'. This indicates not only that s 214(2) and s 214(3) of the PD Act are concerned with restraining and remedying the same unlawful development, but also that the potential recipients of directions under each subsection are the same persons. The identity of the person undertaking the unlawful development for the purposes of s 214(2) is the same as the identity of the person who undertook the unlawful development for the purposes of s 214(3) of the PD Act. Similarly, the identity of 'the owner' for the purposes of s 214(2) is the same as the identity of the owner for the purposes of s 214(3) of the PD Act. Plainly, 'the owner', for the purposes of s 214(2) of the PD Act, is the owner at the time when the development is being undertaken. It therefore follows that 'the owner', for the purposes of s 214(3) of the PD Act, is also the owner at the time when the development was undertaken.
41.Furthermore, the purpose of the legislation would not be served by exposing a landowner, who acquired ownership after unlawful development was carried out on the land, to a direction that the owner remedy the unlawful development. Indeed, it would be contrary to the legislative purpose to expose innocent third parties to an order to remedy unlawful development that they did not undertake.
42.While, ideally, responsible authorities should act promptly to give directions to restrain and/or remedy unlawful development under s 214(2) and s 214(3) of the PD Act, it is conceivable that the identity of the landowner may change before the responsible authority is in a position to give a direction, either because of a deliberate attempt on the part of the landowner to seek to avoid having to remedy unlawful development or an innocent change of ownership. However, this prospect does not warrant a different interpretation of s 214(3) of the PD Act under which a subsequent landowner could be the subject of a direction. Despite a change or changes of ownership of the land in question, the responsible authority retains the ability under s 214(3) of the PD Act to give a direction to the landowner or any other person who undertook the unlawful development. It is true that the recipient of such a direction would need to obtain permission from the current landowner to enter the land and comply with the direction. However, if that permission were not obtained, or if the direction were not otherwise complied with according to its terms, the responsible authority may itself enter the land and carry out the direction in accordance with s 215(1) of the PD Act. The responsible authority may then recover any expense involved in implementing the direction from the person to whom the direction was given as a debt in a court of competent jurisdiction under s 215(2) of the PD Act.
For the City, it was submitted that if the BBH ground challenging its conviction were permitted to be argued (and I have indeed reached that position) then, as respondent for the City wishes to contend, that the Lafou decision was wrong, and should be overruled. The City relies in particular on a 1991 decision of Franklyn J (concerning different legislation, namely, s 401(1) of the Local Government Act 1960 (WA)) in Allpike v Lang (1991) 82 LGERA 373, and not apparently cited in Lafou. But Allpike is distinguishable as regards the terms of the different underlying local government legislation then applicable. It carries only a minor relevance in an aspect I will explain below.
Lafou manifests what is obviously a closely considered and viable contextual interpretation of s 214, reached, in particular, from the force of the word 'other', in both s 214(2) and (3): see [39] of Senior Member Parry's reasons. The interpretation of s 214(2) and s 214(3), on its face, looks to me to be well open from the text of s 214.
Lafou is a significant decision by SAT which has stood since 23 September 2009. On any view, it manifests a more than tenable construction of the provisions by the specialist tribunal charged with the oversight of this state's planning legislation on an ongoing basis. At this level I am not prepared to disturb such a decision unless I am clearly persuaded that it is wrongly decided. I am not.
If the Lafou construction truly does carry, as was submitted by the City, some inconvenient planning policy repercussions for local authorities, then it is more than open to those authorities to put a submission towards an amendment to government to amend s 214 to correct any underlying problem. A submission could presumably render it clear why, as a matter of policy, the subsequent land owner may be ordered by an authority to take steps to remove, pull down or alter a development on the land ‑ when that development was undertaken by a predecessor owner. Such submission bearing upon an important freedom would raise policy issues more appropriate for a legislature to address at a future time.
At first instance (with one minor reservation) I would endorse the ongoing applicability of Lafou and would apply it here in BBH's favour. That reservation only concerns the observations in Lafou at [42], as regards a direction given to a previous owner who carried out the development, who may need the subsequent land owner's permission to enter to perform ordered remedial work, thereby leading to potential for the ordering responsible authority, if there follows a compliance default, to carry out the works itself, under s 215(2). The observations of Franklyn J in Allpike at 387 do render it perfectly clear that such a direction could never be given by the local authority for an improper purpose. To do so would be an abuse of process. So much may be accepted. But that does not otherwise detract from the force of the overall statutory construction reached in Lafou.

BBH appeal: disposition

With it now being established through the additional evidence adduced by leave on the appeal that the relevant entities who actually undertook the two unauthorised alterations works at the Malaga site were not BBH, a conviction against BBH, applying Lafou, cannot, in law, be sustained. Consequently, BBH's ground 1 must be upheld. The consequence will be that the charge of infringement against s 214(3) by BBH must be dismissed in circumstances I have assessed to be exceptional, as regards the setting aside of a plea of guilty.
That conclusion strictly renders it unnecessary to consider BBH's further grounds challenging the level of its fine ($348,000), on a basis that the level of such a fine was so high as to be manifestly excessive in all the circumstances, as a miscarriage of the sentencing discretion.
Were it necessary for me to separately evaluate the ground of the penalty being manifestly excessive, I would also uphold that ground as made out, on the basis that, in circumstances where BBH was legitimately awaiting a decision from the City, for a (in effect, retrospective) planning approval, it made no sense for BBH, across the (amended) period 23 November 2012 and 28 February 2013 to remove the two alterations. That is particularly so in circumstances where, on 1 March 2013, the City eventually did issue a development approval, albeit subject to conditions. And the fact a building approval was still required to be obtained by BBH, does not bear upon that evaluation.
Were I called to impose afresh a penalty for that genre of technical transgression, I would struggle to detect any culpability on the part of BBH - for inaction in terms of a non-compliance with a City direction, during the amended time period for the complaint. That being so, I would be inclined to invoke pt 6 of the Sentencing Act, as regards what I would assess as only trivial offending at best, in such circumstances, by a corporation (BBH being a first offender, as well). I would then impose no penalty (see s 40(2), s 44(1)(b) and s 46 of the Sentencing Act). Any suggestion of a daily penalty against BBH, would be wholly inappropriate, as well in this period.
But as explained, leave to appeal is granted, ground 1 is upheld and as a result, BBH's conviction will be quashed.

Steelmakers' resentencing disposition

As mentioned, Steelmakers does not challenge the conviction. I have already upheld its appeal ground 1, by reason of the learned magistrate's misdirected, global focus on earlier conduct during an irrelevant time period, as regards the prosecution.
Steelmakers' ground 2 challenges the fine it received of $388,000 as manifestly excessive.
To evaluate that ground independently and embark upon the required resentencing of Steelmakers it is necessary to assess some comparative fines for other cases of transgressions against local WA planning laws.
Concerning fines for offences against the Planning and Development Act in terms of a head penalty, I mention: Kwa v City of Stirling [2001] WASCA 370; (2001) 117 LGERA 320 ($10,000 in respect of each offence, and daily penalty of $100 a day for 343 days; total amount of fines was $135,555); Peat Resources of Australia Pty Ltd v City of Cockburn [2002] WASCA 342 ($50,000 fine and $200 per days for 362 days); Basso‑Brusa v City of Wanneroo [2003] WASCA 103 (individuals fined $10,000 and corporate appellant fined $20,000); Goddard v City of Stirling [2009] WASC 28 ($30,000 fine); Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; (2010) 199 A Crim R 83 ($120,000 fine as head penalty plus $100 a day for 288 days); Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81; (2010) 174 LGERA 1 (fine of $150,000); GT Homes Pty Ltd v Shire of York [2010] WASC 312 (total penalty of $50,000); Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234 ($100,000 fine and daily penalty of $100 a day for 169 days); Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 (fines of $17,200 and $13,560 for respective individual offenders representing head penalties of $4,000 and $3,000 and daily penalties of $50 or $40 per day in addition); Uxcel Pty Ltd v City of Bayswater ($50,000 fine, reduced on appeal to $5,000 on the basis that it was manifestly excessive and could not have been reached in the exercise of a proper sentencing discretion); Chong & Success Australia Group Pty Ltd v City of Mandurah [2013] WASC 470 (corporation fined $50,000 plus daily penalties of $2,500 aggregate, fine against individual reduced on appeal to $5,000); Chen v City of Stirling [2014] WASC 183; (2014) 203 LGERA 244 (individuals fined $36,600, comprising a fine of $20,000 and daily penalty of $50 a day for 323 days, totalling $16,600; upheld on appeal); and Tissier v City of Rockingham [2014] WASC 158 (individual fined $15,000 which was assessed on appeal as not manifestly excessive).
As mentioned, Steelmakers is a first offender. It entered a plea of guilty at an early occasion. This was in circumstances where what were minor required kerbing, upgrading and car parking area works had been completed by the time of the guilty plea and sentencing, on 30 January 2014. The required deed prepared by the City of Swan's solicitors had also been entered between BBH and the City.
The overall level of culpability of Steelmakers presents then, overall, to be on the relatively low side. The real culpability was in failing to timeously attend to arranging the car parking area repair work - but Mr Birighitti's affidavit explains some difficulties encountered in securing the doing of that work by someone qualified.
In all the circumstances, bearing in mind a range of penalties canvassed in decisions I mentioned, I will impose a fine of $15,000, plus a daily penalty of $100 per day, applicable across the period between 30 May 2013 to 29 November 2013: that is, $100 x 177 days, namely, $17,700 in daily penalties, delivering what will be an aggregate fine of $32,700 against Steelmakers.
I will hear from the parties as to the appropriate costs disposition for these two appeals heard together.

SCHEDULE 1

SCHEDULE 2

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: STEELMAKERS PTY LTD -v- CITY OF SWAN [2014] WASC 449 (S)

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS BY SUBMISSIONS OF 9 DECEMBER 2014

DELIVERED : 8 JANUARY 2015

FILE NO/S: SJA 1011 of 2014

BETWEEN: STEELMAKERS PTY LTD
Appellant
AND
CITY OF SWAN
Respondent

FILE NO/S :SJA 1012 of 2014

BETWEEN :BAYBLUE HOLDINGS PTY LTD
Appellant
AND
CITY OF SWAN
Respondent

ON APPEAL FROM:
For File No               :  SJA 1011 of 2014
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 10835 of 2013
For File No               :  SJA 1012 of 2014
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE P A ROTH
File No  :MI 10838 of 2013, MI 10839 of 2013

Catchwords:

Appeals - Summary offences - Legal costs - Single Judge Appeals - Two appeals heard together - Jurisdiction to award costs

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 5
Suitors' fund Act 1964 (WA), s 10

Result:

Costs refused

Category: B

Representation:

SJA 1011 of 2014

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

SJA 1012 of 2014

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Jackson McDonald
Respondent: McLeods Barristers & Solicitors

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

Lafou Pty Ltd v Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87
Steelmakers Pty Ltd v City of Swan [2014] WASC 449

KENNETH MARTIN J: In the aftermath of my reasons for decision of 26 August 2014, see Steelmakers Pty Ltd v City of Swan [2014] WASC 449, the appellants now move the Court for their costs on each appeal. As will be recalled, BBH was successful in having its conviction quashed at the appeal - but on the basis of a legal point which was not raised at all towards its exoneration, before the learned magistrate. In fact, both BBH and Steelmakers Pty Ltd had submitted pleas of guilty through their non‑legally qualified directors, when these summary offences were dealt with at first instance.

Steelmakers also appealed to this Court, but did not challenge its underlying conviction. Rather, its concern was only the level of the fine imposed against it by way of penalty, which it argued was manifestly excessive and had been imposed under misapprehensions as to the correct underlying facts and circumstances by the learned magistrate. Steelmakers also succeeded at the appeal on its arguments. The consequence was that I effectively needed to resentence Steelmakers - imposing a fine of significantly less magnitude than originally imposed.
In those outcome circumstances, both BBH and Steelmakers now seek their costs of their appeals.
The present circumstances are, of course, not the same as a civil litigious dispute - where in ordinary circumstances the successful litigant will expect to receive an award of costs - on the basis that costs follow the event; cf RSC O 66 r 1(1).
Both appellants invoke s 14(1)(h) of the Criminal Appeals Act 2004 (WA), which provides as follows:
14.Supreme Court's powers on an appeal
(1)In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h)make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
Here, BBH also invokes provisions of s 5 of the Official Prosecutions (Accused's Costs) Act 1973 to move for its costs on the basis that as an 'Appeal Court', I can award it its appeal costs. Both appellants contend that their substantive success at the two appeals (heard together) warrants that costs outcome in their favour.
It is convenient to set out s 5(1) and (3) - (5) of the Official Prosecutions Act. It provides:
5.Successful accused entitled to costs
(1)Subject to this Act, a successful accused is entitled to his costs.
…
(3)Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
(4)Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
(5)The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a costs determination (as defined in the Legal Profession Act 2008 section 252).
At the outcome of the appeals and after rendering dispositive orders, I afforded the parties an opportunity to provide written submissions concerning the costs of the appeals.
Both BBH and Steelmakers have provided written submissions (of 9 December 2014) in furtherance of their respective applications for costs.
For its part, the City of Swan, as respondent, has filed no submissions other than to inform the Court by an email to my Associate of 19 December 2014 that should any costs orders be made favouring the appellants, then the respondent in that event would seek a certificate in its favour, under s 10 of the Suitors' Fund Act 1964 (WA), on the basis that the appeals had been successful based upon errors of law by the learned magistrate.

Outcomes on costs

In the end result, I am of the view that neither appellant should receive any award of costs in respect of the outcome of these two appeals. My reasons for those conclusions are explained below.
In the case of BBH, its success in having its conviction quashed on appeal meets the criteria of s 5(4) of the Official Prosecutions Act in order to enliven a jurisdiction to award BBH its costs of the appeal. However, as a matter of discretion as regards s 5, and s 14 of the Criminal Appeals Act, I assess it as inappropriate to take that course. The underlying circumstances here were wholly unique, in that BBH's initial plea of guilt has, on appeal, under leave, been resiled from. Some errors were indeed made below by the learned magistrate. But the point of law that effectively emerged afresh at the appeal (again by leave) was not mentioned at all below. Whilst I allowed the legal submissions concerning the SAT decision in Lafou Pty Ltd v Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87 to be argued and evaluated at the appeal hearing, the point was only ever evaluated once as regards BBH's innocence at the appeal. The Lafou point also only occupied a relatively small aspect of the hearing time consumed by the two appeals, when they were heard, in my view. Hence, there should be no appeal costs awarded to BBH.
As regards Steelmakers, its conviction (on its plea of guilty) has not been disturbed, albeit its punishment by fine has been significantly reduced in quantum, after the appeal. I would not think it appropriate here to award the costs of its appeal to Steelmakers, given all the underlying circumstances. Due to a number of errors by the prosecution and the learned magistrate, the appeal grounds raised by Steelmakers challenging the level of its fine were ultimately made good on appeal. But Steelmakers did not help its cause at all at first instance, when its director representative, Mr Birighitti, attended and attempted to speak in mitigation of his corporation's culpability. Steelmakers' failure to invest in any legal representation at first instance has now been demonstrated, with hindsight, to be a false economy for it. There is no suggestion Steelmakers (or BBH) could not afford proper legal representation.
Steelmakers' first instance penalty outcome has now been adjusted downwards on the appeal. But the whole appellate process might have been avoided had the first instance proceedings been afforded a greater legal resourcing priority by Steelmakers. Steelmakers' conviction, of course, remains in place. In all the circumstances, I am not persuaded that the Court's discretion to award costs in its favour is appropriately used here - even if the jurisdiction to render that result has been engaged.
In these circumstances, it is not necessary to evaluate the respondent's argument seeking a certificate under the Suitors' Fund Act. Had I needed to, I would have been very troubled about taking that step of granting a certificate, by reason of the significant contributions by the respondent as prosecutor, to the unfortunate derailment events that unfolded before the learned magistrate and contributed to these appeals happening.
The appellants' applications for the costs of these appeals are therefore refused.