Stewart v City of Belmont
[2016] WASCA 5
•11 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: STEWART -v- CITY OF BELMONT [2016] WASCA 5
CORAM: BUSS JA
NEWNES JA
HALL J
HEARD: 20 OCTOBER 2015
DELIVERED : 11 JANUARY 2016
FILE NO/S: CACV 69 of 2014
BETWEEN: PAUL CHRISTOPHER STEWART
Appellant
AND
CITY OF BELMONT
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MARTIN CJ
Citation :STEWART -v- CITY OF BELMONT [2013] WASC 366
File No :CIV 1912 of 2013
Catchwords:
Criminal law - Appeal from refusal of review orders under s 36 Magistrates Court Act 2004 (WA) - Offences of failing to remove rubbish and asbestos from a property - Whether appellant was the owner of the property at the relevant time - Whether appellant in possession or entitled to possession of the property - Effect of bankruptcy - Whether prosecution notice properly served on the appellant - Whether appropriate to proceed in absence of the appellant pursuant to s 55 Criminal Procedure Act 2004 (WA) if he was not properly served and was unaware of the proceedings
Legislation:
Bankruptcy Act 1966 (Cth)
Criminal Procedure Act 2004 (WA), s 33, s 55, sch 2 cl 3
Health (Asbestos) Regulations 1992 (WA), reg 8
Local Government Act 1995 (WA), s 1.4, s 3.25
Transfer of Land Act 1893 (WA), s 58, s 234
Result:
Extension of time granted
Leave to appeal granted
Application to admit new evidence granted
Appeal allowed
Convictions set aside
Retrial ordered
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr D P Gillett
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425
Bride v Shire of Katanning [2013] WASCA 154
DPJB v The State of Western Australia [2010] WASCA 12
Genovese v City of Perth [2012] WASCA 89
Glew v City of Greater Geraldton [2012] WASCA 94
Glew v Shire of Greenough [2006] WASCA 260
Hargreaves v Tiggemann [2012] WASCA 92
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Pennicuik v City of Gosnells [2011] WASC 63
Perry v Carrier [2013] WASC 299
Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99
Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221
Schaefer v Department of Housing [No 2] [2012] WASCA 229
Simonsen v Legge [2010] WASCA 238
Stewart v City of Belmont [2013] WASC 366
Van Lieshout v City of Fremantle [No 2] [2013] WASC 176
BUSS JA: I agree with Hall J.
NEWNES JA: I agree with Hall J.
HALL J: This is an appeal against a decision dismissing two applications made by the appellant for review orders under s 36 of the Magistrates Court Act 2004 (WA): Stewart v City of Belmont [2013] WASC 366. The first application related to a decision by Magistrate Bayly to convict the appellant of an offence of failing to remove rubbish as directed contrary to s 3.25 of the Local Government Act 1995 (WA) and an offence of failing to remove asbestos as directed contrary to reg 8 of the Health (Asbestos) Regulations 1992 (WA). The second application related to a decision of Magistrate Heaney to refuse to set aside the convictions entered by Magistrate Bayly.
The refusal of a review order is an interlocutory decision. See Schaefer v Department of Housing [No 2] [2012] WASCA 229 [35]. No appeal lies to the Court of Appeal from an interlocutory decision without leave, save in specified circumstances not presently relevant: s 60(1)(f) of the Supreme Court Act 1935 (WA) and Re Hogan; Ex parte West Australian Newspapers Ltd [2009] WASCA 221 [6] ‑ [8]. Accordingly the appellant requires leave to appeal. He must show that the decision of the primary judge is wrong or attended with sufficient doubt to justify the grant of leave and that substantial injustice would be done if the decision remained unreversed.
The time for appealing was within 14 days after the date of the decision being appealed: r 26(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA). The order dismissing the application relating to the decision of Magistrate Heaney was made on 1 July 2013. The order dismissing the application relating to the decision of Magistrate Bayly was made on 10 October 2013. The appeal notice was filed on 19 June 2014. Accordingly the appellant requires an extension of time.
The principles relevant to an application for an extension of time were set out in Simonsen v Legge [2010] WASCA 238 [8]. There are generally four factors to be considered; the length of the delay, the reasons for the delay, the prospects of the appellant succeeding in the appeal and the extent of any prejudice to the respondent.
In this case the delay is significant. The reasons for the delay provided by the appellant are that he is a self‑represented litigant unfamiliar with the procedures of the court, that he did not have the
financial capacity to engage a lawyer and that his time was consumed as the sole carer for his autistic son. Those reasons do not adequately explain delays of 7½ months and 11 months in respect of the orders. It should not have been difficult to commence an appeal within time, but equally any prejudice to the respondent arising from the delay in bringing this appeal is slight.
The reasons given by the appellant for the long delay do not in themselves justify an extension of time. Whether an extension should be granted depends critically on the strength of the appellant's grounds of appeal and whether to refuse an extension would be unjust. Accordingly it is necessary to consider the grounds before returning to the question of whether an extension should be granted.
In all of the proceedings the respondent has had legal representation and the appellant has been unrepresented.
Magistrates Court proceedings
At all relevant times the appellant was the registered owner of a residential property at 321 Fisher Street, Cloverdale. The property is in a residential area surrounded by other dwellings. In October 2010 the respondent, the City of Belmont, received complaints from ratepayers regarding a large amount of rubbish and disused material that had accumulated around the property. That material included full sheets and fragments of asbestos fencing.
The respondent issued notices to the appellant pursuant to s 3.25 of the Local Government Act requiring the removal of the rubbish and disused material from the property within 14 days. The respondent also issued notices pursuant to the Health (Asbestos) Regulations requiring the removal of the asbestos material from the property to a licensed asbestos waste disposal facility within 7 days.
It was alleged that the rubbish and asbestos was not removed in compliance with the notices. In consequence the respondent lodged a prosecution notice in the Magistrates Court on 31 January 2011 alleging that the appellant had committed offences by failing to comply with each of the notices. These charges covered the period 2 November 2010 to 4 January 2011. He was convicted of those charges on 18 March 2011. Further charges were lodged on 30 March 2011 covering the period from 5 January 2011 to 18 March 2011. He was again convicted on 15 April 2011. A third set of charges was lodged on 18 August 2011 covering the period from 19 March 2011 to 9 August 2011. This appeal is concerned only with the third set of charges (charge numbers 11/39065 and 11/39066).
On or about 16 August 2011 a court hearing notice and the prosecution notice were posted to the appellant, addressed to the Cloverdale property. The court hearing notice stated that the charges would be heard in the Magistrates Court at Perth on 16 September 2011. A copy of the court hearing notice filed in the Magistrate Court contained a certificate signed by the process server to the following effect:
On 16 August 2011, the accused was served with a copy of this notice, and the prosecution notice at the address shown in the 'accused's details' of this court hearing notice by post in accordance with Schedule 2 clause 3 of the Criminal Procedure Act 2004 by a person authorised in writing to do so by the prosecutor.
The appellant did not at that time reside at the Cloverdale property. Indeed, there is no evidence to suggest that he has ever resided there. He denies doing so and says that the property was an investment property. This is consistent with inspections of the property by officers of the respondent which established a tenant in occupation. Whether that tenant remained in occupation on 16 August 2011 when the notices were posted is not clear. The appellant later claimed that he did not receive the notices and therefore had no knowledge of the charges or the hearing date.
The charges were heard in the Magistrates Court on 16 September 2011 before Magistrate Bayly. The appellant did not attend the hearing. At the commencement of the hearing there was confusion about whether service had been effected by post because the prosecutor had erroneously lodged two copies of the court hearing notice, one of which did not include an indorsement of service. Despite this confusion the magistrate accepted that copies of the court hearing notice and prosecution notice had been properly served.
The magistrate granted leave to the prosecutor to proceed with the hearing in the absence of the appellant pursuant to s 55 of the Criminal Procedure Act 2004 (WA). The prosecutor read a statement of facts and the magistrate said that he was satisfied that the offences had been proven. He fined the appellant $1,000 in respect of each charge and a daily penalty of $50 for 144 days of continuing contravention ($16,400 in total). His Honour also made an order requiring that the appellant pay costs in the amount of $1,140.70.
During the course of the hearing the prosecutor brought to the magistrate's attention that the appellant did not live at the property. The following exchange occurred:
HIS HONOUR: Has somebody been in contact with them?---It always worries me. Often people who are in these sort of situations suffer from some sort of mental illness and the Shire does nothing but fine them and fine them and eventually take their house off them when they could have sent somebody around, a social worker to go and do something about it.
PROSECUTOR: The City has attempted to contact the accused. Unfortunately the accused doesn't live at the property. We did have a telephone number for him and he did stop returning calls (indistinct) notice had been served on the property. I don't know if there's much the City can do in the circumstances. The City takes the position that the accused was made aware of it. (Green Appeal Book, page 14).
The appellant claims that the first he heard of the charges was when he received a letter from Landgate on 28 September 2011 informing him that a memorial had been registered on the title of the property which referred to the amount of accumulated outstanding fines.
On 22 October 2012 the appellant applied to the Magistrates Court pursuant to s 71(2) of the Criminal Procedure Act for an order setting aside his convictions. That application was heard by Magistrate Heaney on 8 March 2013. At the hearing the appellant said that he was never personally served with the prosecution notice and that the property where documents were served was an investment property. The other basis of his application was as follows:
The City of Belmont is trying to extract money which is not legal for them to do so (sic) as there was no contract between myself and the City of Belmont which is a corporation with no more legal capacity from a natural person and cannot legally enforce any law of local government. It has no mandate from the people for the laws and no Royal Assent for the laws.
The appellant also argued that the Local Government Act had not been proclaimed and that this meant that the fines imposed pursuant to the Act were invalid.
Magistrate Heaney dismissed the application on the basis that the defence that the appellant wished to advance was an absurdity.
Application to the Supreme Court - s 36 Magistrates Court Act
The appellant applied under s 36 of the Magistrates Court Act for review orders declaring void the decisions of Magistrates Bayly and Heaney on the grounds that he was denied natural justice and that the orders made by both magistrates were made without jurisdiction.
In relation to the decision of Magistrate Bayly, the appellant contended that in conducting a hearing in his absence, in circumstances where he had not personally received the court hearing notice or the prosecution notice and therefore had no knowledge of the charges or the hearing, he was denied natural justice and that Magistrate Bayly was therefore acting without jurisdiction when he imposed the fines.
In relation to the decision of Magistrate Heaney, the appellant asserted that he was denied natural justice because of the magistrate's refusal to hear his submissions regarding the constitutionality of local government.
On 1 July 2013 the primary judge dismissed, on an ex parte basis, the application for a review order in respect of Magistrate Heaney's decision. As regards the second application, his Honour directed that the other parties to the proceedings should be served. That matter was then listed for a hearing on 13 August 2013. On 10 October 2013 his Honour dismissed the second application and delivered written reasons for his decisions in respect of both applications.
In his reasons the primary judge noted that the jurisdiction conferred upon the court by s 36 of the Magistrates Court Act is fundamentally different in character to appellate jurisdiction. Appellate jurisdiction involves a rehearing by the appellate court for the purpose of correcting error of fact or law on the part of the court below. His Honour said that in contrast the jurisdiction conferred by s 36 is analogous to the common law jurisdiction relating to judicial review of the acts and decisions of lower courts. He said that generally only jurisdictional errors or errors of law on the face of the record will enliven the jurisdiction of the court under s 36, and errors of fact or errors of law not evident on the face of the record or within jurisdiction can only be addressed through the normal appellate processes: Stewart v City of Belmont [31].
As regards the application for a review order in respect of the decision of Magistrate Heaney, the primary judge said that the grounds upon which that review order was sought were wholly without merit. The appellant's argument that the respondent had no authority to impose fines due to a lack of provision for local government in the Commonwealth Constitution and the failure of the 1988 referendum to recognise local government in the Commonwealth Constitution had been rejected in numerous other cases. His Honour referred to Glew v Shire of Greenough [2006] WASCA 260 [22] ‑ [25]; Van Lieshout v City of Fremantle [No 2] [2013] WASC 176; Pennicuik v City of Gosnells [2011] WASC 63; Hargreaves v Tiggemann [2012] WASCA 92; Glew v City of Greater Geraldton [2012] WASCA 94.
In any event, the primary judge said that the appellant's challenge to the decision of Magistrate Heaney was not an allegation of denial of natural justice or of acting in excess of jurisdiction, but rather was an attempt to have the argument as to constitutional validity that had been rejected by the magistrate reheard by the Supreme Court. His Honour said that that was not a matter which fell within the ambit of the jurisdiction conferred by s 36.
As regards the application in relation to the decision of Magistrate Bayly, the appellant filed two affidavits one on 20 June 2013 and one on 16 July 2013. In the first affidavit the appellant stated, amongst other things, that the prosecution notice and court hearing notice had not been served upon him and that he only received them when he made a request to obtain them from the court records on 4 April 2013. He also stated that at the relevant time he was not in possession of the Cloverdale property because he had informed the Insolvency and Trustee Service Australia of his intention to declare bankruptcy. In the second affidavit the appellant stated that he did not live at the Cloverdale address and that the tenant who did so was a former tenant that he had removed and who had moved back into the house without permission knowing of the appellant's insolvency.
In his reasons the primary judge noted that '[a] representative of the [respondent]' had 'attended at [the] hearing [on 13 August 2013]' and 'advised the court that the Cloverdale property was recorded on the [respondent's] records as [the appellant's] last known address' [41]. The transcript of that hearing shows that in response to questions put to him by the primary judge the appellant said that he had no knowledge of the service of the documents and did not live at the Cloverdale address. He said he did not collect mail from that address. No evidence was called at the hearing. The following exchange appears to be what his Honour is referring to in his reasons at [41]; that is, 'evidence' from the Bar table:
MARTIN CJ: Yes, all right. Well, it seems - just going back to the question of service, from what I read on the papers that the prosecution notice was sent to the address, the subject of the proceedings.
MR GILLETT: Yes, Sir.
MARTIN CJ: And the photographs on the file show that that address was unoccupied. Why was that done? Why was the notice sent to an unoccupied address?
MR GILLETT: That's the address for Mr Stewart on the City's records.
MARTIN CJ: And so you rely on the provisions relating to the service under the -
MR GILLETT: Yes, Sir. It's the address, and I would have to double check, sir, but I think it's also the address shown on the Certificate of Title. But it's certainly the address shown on the City's records, and I would anticipate, and without double checking, that it's also the address shown on the Certificate of Title. So it was served to that address (ts 11).
In his reasons the primary judge set out the relevant provisions of the Criminal Procedure Act and gave consideration to whether service of the prosecution notice and the court hearing notice were facts on which the jurisdiction of the Magistrates Court depends. However his Honour did not find it necessary to determine that question because he concluded that the appellant had failed to establish that service was not effected in accordance with the Criminal Procedure Act. His conclusions in that regard were as follows:
There is clear evidence to the effect that the court hearing notices and the prosecution notices were posted to Mr Stewart at the address of the Cloverdale property. The prosecution advised Magistrate Bayly that the Cloverdale property was Mr Stewart's last known address, and he was, and remained at all material times, the owner of that property. There is no evidence to suggest that Mr Stewart ever provided any other address to the City, such that it could be said that there was some other address which was 'last known'. The fact that Mr Stewart did not actually reside at the Cloverdale property at the time the notices were posted does not establish that it was not the address at which he was last known to reside, work or conduct a business within the meaning of clause 3 of schedule 2 of the Criminal Procedure Act.
So, even if service in accordance with the Criminal Procedure Act is a fact upon which the jurisdiction of the Magistrates Court depended at the time Mr Stewart was convicted, he has failed to establish the non-existence of that fact so as to give rise to an arguable basis for the grant of a review order. On the other hand, if the question of service was not a jurisdictional fact, but rather a matter to be determined in the course of exercising jurisdiction, on the material before the magistrate it was open to him to determine that service had been effected, and it could not be plausibly suggested that in making that determination he had exceeded the jurisdiction conferred upon him.
For these reasons, Mr Stewart has failed to make out an arguable case for the grant of an order to review the decision of Magistrate Bayly convicting him of the charges brought against him, on the ground that service of notice of the hearing had not been effected in accordance with the provisions of the Criminal Procedure Act [57] - [59].
Grounds of appeal
The appellant filed an appeal notice on 19 June 2014. The Magistrates Court Act does not make any provision for appeals from the decision of a single judge refusing a review order. The jurisdiction of this court to entertain such an appeal derives from s 58(1)(a) or s 58(1)(b) of the Supreme Court Act. See, generally, Allbeury v Corruption and Crime Commission [2012] WASCA 84; (2012) 42 WAR 425. As I have noted earlier, the refusal of a review order (as contrasted with the refusal of a final order under s 36) is an interlocutory decision and leave is required in respect of any appeal.
The appellant's grounds of appeal, both in the notice of appeal and as subsequently amended, are difficult to understand. However on the hearing of the appeal it became apparent that he was essentially raising two contentions. First, that at all relevant times he was neither the owner nor occupier of the Cloverdale property. This was said to be because at the time of the alleged offences he was an undischarged bankrupt and his property had vested in his bankruptcy trustee. Alternatively, by that time he had defaulted on a mortgage and the mortgagee bank had exercised its rights to take possession of the property. Second, that the prosecution notice and court hearing notice had not been properly served upon him because the Cloverdale property was not, and had never been, his place of residence.
The first contention is not one that was specifically raised in the proceedings before the primary judge. Though the appellant's bankruptcy was referred to in his affidavits, it was not an issue that was raised in his grounds for seeking a review order or in his submissions. He seeks to support that contention in this court by making an application for fresh evidence to be admitted on the appeal. That evidence consists of an affidavit of the appellant dated 11 November 2014 together with annexures. The appellant concedes that the information on which he seeks to now rely was in existence and available to him at the time of the proceedings before the primary judge. In these circumstances the evidence is new rather than fresh and must meet the higher test applicable to such evidence. An appellate court will not allow an appeal against conviction on the basis of new as distinct from fresh evidence, unless the new evidence establishes that the appellant is innocent or it raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 ‑ 676 (Mason J); DPJB v The State of Western Australia [2010] WASCA 12; Genovese v City of Perth [2012] WASCA 89.
The new evidence
In his affidavit the appellant states that the respondent should have known that the last address at which he resided was not the Cloverdale property but 16 Peachey Avenue, Kewdale. He supports this by annexing a copy of the certificate of title for the Cloverdale property which records that the registered proprietor is 'Paul Christopher Stewart of 16 Peachey Avenue, Kewdale (TK368346) registered 8 October 2007'. The copy of the certificate of title also records as encumbrances a mortgage to the Commonwealth Bank of Australia registered on 8 October 2007 and a caveat by the Official Trustee in Bankruptcy lodged on 27 January 2010. The copy of the certificate of title is dated 6 August 2010, but there was no dispute that the registered proprietor details remained correct as at the date of the alleged offences (being 19 March 2011 to 9 August 2011).
Also annexed to the affidavit is a letter from the Insolvency and Trustee Service Australia to the appellant dated 29 January 2010. The letter states that the appellant became bankrupt on 22 January 2010 and that the Official Trustee in Bankruptcy is the trustee of his bankrupt estate. The letter states that the appellant's interest in the Cloverdale property is vested in the Official Trustee and is an asset in the bankrupt estate. It also states that a bankrupt may continue to occupy the property on the understanding that the bankrupt and any co‑owners will be required to continue paying mortgage payments, rates and levies, in addition to keeping the property in a reasonable state of repair. Any such payments are considered by the trustee to be an 'occupation fee'.
The next document annexed to the appellant's affidavit is a letter from Gadens Lawyers dated 2 December 2010 addressed to 'the occupant' of the Cloverdale address. The letter states that the firm represents the Commonwealth Bank and that there has been a default pursuant to the provisions of a mortgage registered over the Cloverdale property. The letter states that the bank intends to exercise its rights under the mortgage to take possession of the property. A notice that appears to relate to the letter from Gadens is also annexed. The notice requires that the appellant vacate and deliver up possession of the property to the bank as mortgagee on or before 11.00 am on 10 December 2010.
Neither the appellant's affidavit nor the annexed material provides any information as to when the appellant was discharged from bankruptcy, assuming that that has occurred. Nor is there any information as to whether the bank did obtain possession of the Cloverdale property and whether it remained in possession as at the date of the alleged offences or the date when the prosecution notice and court hearing notice were posted to that address.
The contention that the appellant was not the owner
The charges against the appellant are in the following terms:
1.Between 19 March 2011 and 9 August 2011, both dates inclusive, being the owner of land within the district of the City of Belmont (the appellant) failed to comply with a notice under s 3.25(1) of the Local Government Act 1995 requiring him to remove disused material from the land, contrary to s 3.25(6) of the Local Government Act 1995; and
2.Between 19 March 2011 and 9 August 2011, both dates inclusive, being the owner of premises within the district of the City of Belmont (the appellant) failed to comply with a direction in a notice under reg 8(1) of the Health (Asbestos) Regulations 1992 requiring him to remove material containing asbestos from the premises, contrary to reg 8(4) of the Health (Asbestos) Regulations 1992.
Section 3.25 of the Local Government Act provides as follows:
(1)A local government may give a person who is the owner or, unless Schedule 3.1 indicates otherwise, the occupier of land a notice in writing relating to the land requiring the person to do anything specified in the notice that —
(a)is prescribed in Schedule 3.1, Division 1; or
(b)is for the purpose of remedying or mitigating the effects of any offence against a provision prescribed in Schedule 3.1, Division 2.
(2)Schedule 3.1 may be amended by regulations.
(3)If the notice is given to an occupier who is not the owner of the land, the owner is to be informed in writing that the notice was given.
(4)A person who is given a notice under subsection (1) is not prevented from complying with it because of the terms on which the land is held.
(5)A person who is given a notice under subsection (1) may apply to the State Administrative Tribunal for a review of the decision to give the notice.
(6)A person who fails to comply with a notice under subsection (1) commits an offence.
Liability under s 3.25(6) depends upon the person who is given a notice being either an owner, or in some circumstances, an occupier of the relevant land. In this case the allegation was that the appellant was the owner.
Section 1.4 of the Local Government Act defines 'owner' for the purposes of the Act in the following terms:
owner, where used in relation to land -
(a)means a person who is in possession as —
(i)the holder of an estate of freehold in possession in the land, including an estate or interest under a contract or an arrangement with the Crown or a person, by virtue of which contract or arrangement the land is held or occupied with a right to acquire by purchase or otherwise the fee simple; or
(ii)a Crown lessee or a lessee or tenant under a lease or tenancy agreement of the land which in the hands of the lessor is not rateable land under this Act, but which in the hands of the lessee or tenant is by reason of the lease or tenancy rateable land under this or another Act for the purposes of this Act; or
(iii)a mortgagee of the land; or
(iv)a trustee, executor, administrator, attorney, or agent of a holder, lessee, tenant, or mortgagee, mentioned in this paragraph;
or
(b)where there is not a person in possession, means the person who is entitled to possession of the land in any of the capacities mentioned in paragraph (a), except that of mortgagee; …
Regulation 8 of the Health (Asbestos) Regulations 1992 provides as follows:
(1)An authorised person may, by a written notice served on -
(a)the owner of material containing asbestos; or
(b)the owner or occupier of premises on which material containing asbestos is present; or
(c)a person handling material containing asbestos,
direct that person to maintain, repair, remove, move, dispose of, or handle the material containing asbestos in such manner and within such time as is specified in the direction.
…
(3)A person who is served with a notice under subregulation (1) may, within 28 days of the service of the notice, appeal in writing against the notice to the Executive Director, Public Health who may uphold, revoke, or amend the notice.
(4)A person who fails to comply with a direction in a notice under subregulation (1) commits an offence.
Liability under reg 8(4) depends upon the person served with a notice being the owner of the material, the owner or occupier of premises where the material is present, or a person handling the material. In this case the allegation was that the appellant was the owner of premises where material was present.
The Health Act 1911 (WA) defines 'owner' in s 3 (which definition applies to the regulations: s 44 Interpretation Act) in the following terms:
owner means the person for the time being receiving the rack‑rent of the lands or premises in connection with which the word is used, whether on his own account or as agent or trustee for any other person, or who would so receive the same if such premises were let at a rack‑rent;
The appellant raises two separate arguments as to why he was not the owner of the premises at the relevant time (that is, the alleged period of non‑compliance, 19 March 2011 to 9 August 2011). First, he submits that at that time he was an undischarged bankrupt and that the Cloverdale property had vested in his trustee in bankruptcy. Second, he submits that at that time the Commonwealth Bank was in possession of the property as mortgagee. Each of those arguments needs to be considered in the context of the relevant law and the available evidence.
The Bankruptcy Act 1966 (Cth) s 58 relevantly provides that:
(1)Subject to this Act, where a debtor becomes a bankrupt:
(a)the property of the bankrupt, not being after‑acquired property, vests forthwith in the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section 156A, in that registered trustee; and
(b)after‑acquired property of the bankrupt vests, as soon as it is acquired by, or devolves on, the bankrupt, in the Official Trustee or, if a registered trustee is the trustee of the estate of the bankrupt, in that registered trustee.
(2)Where a law of the Commonwealth or of a State or Territory of the Commonwealth requires the transmission of property to be registered and enables the trustee of the estate of a bankrupt to be registered as the owner of any such property that is part of the property of the bankrupt, that property, notwithstanding that it vests in equity in the trustee by virtue of this section, does not so vest at law until the requirements of that law have been complied with.
Section 58 of the Transfer of Land Act 1893 (WA) provides that:
No instrument until registered in manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage or charge or to make any dealing in respect of Crown land effective, as the case requires; but upon such registration the estate or interest comprised in the instrument shall pass or as the case may be the land shall become liable in manner and subject to the covenants and conditions set forth and specified in the instrument or by this Act declared to be implied in instruments of a like nature, or the dealing in respect of Crown land is made effective, as the case required.
Section 234 of the Transfer of Land Act provides that:
(1)Every person who, as trustee, assignee, or by any other name, is representative of a bankrupt or insolvent estate is entitled to be registered as proprietor of any property under this Act, which is portion of such estate, and the Registrar, upon receipt of an office copy of the appointment of such representative, accompanied by an application under his hand to be so registered, shall enter in the Register on the certificate of title for such property, a memorandum notifying the appointment of such representative, who shall thereupon become the transferee, and be deemed to be the proprietor of such property, and shall hold the same subject to the duties and trusts affecting the estate, but for the purpose of dealing therewith under this Act, shall be deemed the absolute proprietor thereof.
(2)All property which any bankrupt or insolvent, before adjudication, or after adjudication and before obtaining his certificate of discharge became entitled to, or became entitled under any power of appointment or disposition to dispose of for his own benefit, shall be deemed a portion of the estate of such bankrupt or insolvent.
The evidence is that the appellant was the registered proprietor of the Cloverdale property on 6 August 2010 and both parties accept that remained the position as at the time of the alleged offences. However, the appellant submits that, notwithstanding that he remained the registered proprietor, he was no longer the 'owner', as defined in s 1.4 of the Local Government Act or s 3 of the Health Act, because all rights that he had in the property had vested in either his trustee in bankruptcy or the mortgagee.
The effect of the appellant being declared bankrupt on 22 January 2010 was that the Cloverdale property vested in equity in the trustee, however that property did not vest at law until the requirements of the Transfer of Land Act had been complied with: s 58(2) Bankruptcy Act. Whilst the appellant remained registered as the proprietor on the title he continued to hold the legal interest in the property: Queensland v Beames [2003] QSC 399; [2004] 2 Qd R 99 [7].
The trustee did lodge a caveat on 27 January 2010. A caveat does not have any effect on who is the registered proprietor. If there had been a memorandum of the type referred to in s 234 of the Transfer of Land Act, entered by the Registrar on the certificate of title, it would have the effect of deeming the trustee to be the proprietor. However, no such memorandum has been produced and there is no basis for concluding that one was ever registered.
Accordingly, in my view, the fact that the appellant may have been an undischarged bankrupt at the time of the alleged offences did not in itself mean that he did not have a legal interest in the Cloverdale property at the relevant time. He remained the holder of a freehold estate in the land. However, his legal interest was subject to the rights and interests vested in the trustee in bankruptcy. The remaining question is whether the appellant was, as the holder of a freehold estate in the land, either 'in possession' or 'entitled to possession' at the relevant time for the purposes of the definition of 'owner' in s 1.4 of the Local Government Act.
In Bride v Shire of Katanning [2013] WASCA 154 Murphy JA and Edelman J, in separate reasons, gave consideration to the definition of 'owner' in s 1.4 of the Local Government Act and, in particular, what was meant by 'possession' in that context. They both concluded that it meant actual possession with an extension to cover circumstances where the owner exercises some right of present enjoyment of the land. Murphy JA said at [18] that the meaning of the word 'owner' derived from par (a) when applied to s 6.55 (which refers to the recovery of rates and service charges) includes 'a person who is the registered proprietor of an estate in freehold who is in actual possession of the land' and 'a person who is the registered proprietor of an estate in freehold who is exercising the right of present enjoyment in the freehold estate by, for example, the receipt of rents or profits'. There is no reason to think that this interpretation does not apply when the definition is used in the context of s 3.25: Interpretation Act 1984 (WA) s 6.
The key issues in regard to the Local Government Act charge are:
(1)who was in possession of the property at the relevant time? and
(2)if no person was in possession at that time, who was entitled to possession?
The key issue in regard to the Health Act charge is: who was entitled to receive the rack‑rent if the premises had been let at a rack‑rent at the relevant time?
The available evidence is that there was no person in actual possession of the property at the relevant time. The respondent does not suggest to the contrary. Rather the respondent submits that the appellant was the owner of the property because he was entitled to possession of the property as the holder of an estate in freehold. There is some evidence that the premises were tenanted for an unspecified period, though the appellant states that if the tenant remained in occupation during the relevant period it was without his authority. There is no evidence that the appellant was receiving any rent or profits derived from the property. However, the respondent also submits that as the registered proprietor the appellant was entitled to receive any rent if the premises were let, notwithstanding that he may have had to account to his trustee in bankruptcy for any rent received.
There are three people who could conceivably have had a right to possession of the property: the appellant, his trustee in bankruptcy, and the mortgagee. Mortgagees are excluded from paragraph (b) of the definition of 'owner' in s 1.4 of the Local Government Act. A mortgagee not in possession but entitled to it is not an owner for the purposes of that definition.
As regards the appellant and his trustee in bankruptcy, assuming the appellant was an undischarged bankrupt any rights he had to possession of the property must have vested in his trustee. The fact that the appellant remained the registered owner does not mean that he independently retained the rights of an owner to possession. In any contest between the appellant and his trustee as to who was entitled to possession of the property the trustee would clearly prevail. See s 58 Bankruptcy Act and the definition of 'property' in s 5 which includes 'any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to' any real or personal property.
Similarly, the appellant could not claim any entitlement to receive rent if the premises had been let. Any such entitlement must have vested in his trustee in bankruptcy. In any contest between the appellant and his trustee as to who had the right to receive the rent the trustee would prevail. Again see s 58 Bankruptcy Act and the definition of 'property'.
Accordingly, if the appellant was an undischarged bankrupt at the relevant time he was not a person entitled to possession of the property nor was he a person entitled to receive the rent if the premises were let. This conclusion accords with the evident purpose of both definitions of owner; that is to specify those persons who have rights in respect of the property such as would give them the ability to comply with a notice. No purpose would be served by making a person liable who has no relevant rights in respect of the property because those rights have vested in his trustee in bankruptcy.
The evidence provided by the appellant raises questions regarding his status as the owner of the Cloverdale property at the relevant time. However that evidence is inconclusive. It does not prove that the mortgagee was in possession of the property and it does not prove that the appellant was an undischarged bankrupt for the relevant period. In order to meet the test for new evidence the evidence adduced by the appellant would need to establish that he was not the owner at the relevant time or at least raise such a doubt about that as to satisfy the court that he should not have been convicted. It does not do so. It may be that other evidence is available in this regard. However that may be, as I will explain, in my view the second contention raised by the appellant should result in the success of this appeal, the setting aside of the convictions and an order for a retrial.
The contention that the appellant was not properly served with the prosecution notice
Each of the alleged offences in this case was a simple offence. A simple offence is an offence that is not an indictable offence: s 3 of the Criminal Procedure Act. Where a prosecution notice alleges one or more simple offences the prosecutor must apply to a justice of the peace or a prescribed court officer for the issue of a court hearing notice (or to a magistrate for an arrest warrant): s 28(4) of the Criminal Procedure Act.
Section 33 of the Criminal Procedure Act provides for the contents and service of court hearing notice. That section provides as follows:
Court hearing notice, contents and service of
(1)A court hearing notice must -
(a)be in a prescribed form; and
(b)if issued in the first instance, must form part of or be attached securely to a copy of the prosecution notice to which it relates; and
(c)if issued after the accused has been served with the prosecution notice, must identify the prosecution notice or the charge or charges in it or be attached securely to a copy of it; and
(d)state where and when the prosecution notice will be dealt with by the court; and
(e)contain the information required by subsection (2); and
(f)contain any information prescribed; and
(g)be signed -
(i)if it is being issued by an authorised investigator, by the investigator; or
(ii)if it is being issued by a JP or a prescribed court officer, by the JP or officer.
(2)A court hearing notice must inform the accused —
(a)that the accused need not appear at the time when the prosecution notice to which it relates will be dealt with by the court; and
(b)that the accused may give the court written notice that the accused -
(i)pleads guilty to one or more of the charges in the prosecution notice;
(ii)pleads not guilty to one or more of the charges in the prosecution notice;
and
(c)that if the accused pleads guilty in writing to a charge the accused may also, in writing -
(i)explain why the accused committed the offence;
(ii)provide information to the court that it may use when imposing a sentence for the offence;
and
(d)that if the accused, in writing, pleads guilty or not guilty to a charge and does not appear, the charge may be dealt with in the accused’s absence; and
(e)that if the accused does not enter a written plea to a charge in the prosecution notice and does not appear, the charge may be dealt with in the accused’s absence.
(3)A court hearing notice issued to an accused must be served on the accused in accordance with Schedule 2 clause 2, 3 or 4.
In this case the respondent chose to serve the prosecution notice and court hearing notice by post. Accordingly cl 3 of sch 2 is relevant. It provides:
Postal service on individuals and corporations
(1)This clause applies in relation to serving an individual or a corporation.
(2)To serve a document or other thing on a person (the named person) in accordance with this clause, a person referred to in subclause (4) or (5) must post it to the named person at -
(a)the address where the named person was last known to reside, work or conduct a business; or
(b)if subclause (6), (7) or (8) applies, the address deemed by that subclause to be the named person’s last known address, unless there is any reason for the person referred to in subclause (4) or (5) to believe that that address is not where the named person resides, works or conducts a business,
and, if necessary, in accordance with subclause (3).
(3)If the document is a court hearing notice, it must be posted under subclause (2) at least 14 days before the court date stated in the notice.
(4)If the document is an infringement notice issued under Part 2, the person who posts it must be an authorised officer (as defined in section 4).
(5)If the thing being served is or relates to a prosecution notice, the person who posts the thing must be -
(a)an officer of the court concerned; or
(b)the prosecutor; or
(c)a person authorised in writing to do so by the prosecutor.
(6)If the thing being served is or relates to an infringement notice or a prosecution notice that alleges the named person committed an offence arising from the driving or use of a vehicle, the address of the named person in a driver’s licence produced by the person during the investigation of the offence is deemed to be the named person’s last known address.
(7)If the thing being served is or relates to an infringement notice or a prosecution notice that alleges the named person committed an offence as the owner of a vehicle, the address of the named person that is recorded as the address of the owner on the vehicle licence for the vehicle that is in force at the time of the alleged offence is deemed to be the named person’s last known address.
(8)If the thing being served is or relates to an infringement notice or a prosecution notice that alleges the named person committed an offence under a written law, the address of the named person, or of any premises of which the person is the owner or occupier, in any licence, permit or similar document that is in force at the time of the alleged offence under that law or a law connected to that law is deemed to be the named person’s last known address.
(9)For the purposes of subclause (8) a law is connected to a written law if it is -
(a)subsidiary legislation made under that written law; or
(b)the law that empowers the making of that written law as subsidiary legislation; or
(c)a code or similar provision adopted or enacted by that written law; or
(d)the law that adopted or enacted that written law as a code or similar provision.
(10)A person who serves a named person with a document or other thing under this clause must record the service information in a service certificate signed by the person.
(11)A document or other thing that is posted under this clause is to be taken to have been served on the named person on the fourth working day after the date on which it was posted unless the postal service returns it to the sender or the contrary is proved.
In this case counsel for the respondent advised the primary judge that the prosecution notice and court hearing notice were served by post sent to the Cloverdale property because that was the last known address for the appellant in the respondent's records (ts 11). See [30] above. This information was provided by counsel from the Bar table. However, even assuming it is correct, the requirement in cl 3(2) is to post the court hearing notice to the address where the named person was last known 'to reside, work or conduct a business' unless one of cl 3(6), cl 3(7) or cl 3(8) applies. The last known address for the named person may not be the address where the named person was last known 'to reside, work or conduct a business'.
Clause 3(6) and cl 3(7) have no application. By cl 3(8), relevantly, if the thing being served is or relates to a prosecution notice that alleges the named person committed an offence under a written law, the thing may be served by being posted to 'the address of the named person, or of any premises of which the person is the owner or occupier, in any licence, permit or similar document that is in force at the time of the alleged offence under that law or a law connected to that law'. A licence, permit or similar document, in the context of cl 3(8), appears to be a document issued to the named person or in respect of the relevant premises that authorises the doing of something under the written law or a law connected to that law which would otherwise be unlawful. The notion of 'a law connected to a written law' is explained in cl 3(9). In the present case, the prosecution notice alleged that the appellant had committed offences under written laws, namely an offence contrary to s 3.25 of the Local Government Act and an offence contrary to reg 8 of the Health (Asbestos) Regulations. There is no evidence that the records of the respondent in relation to the appellant and the Cloverdale property included any documents within the category described in cl 3(8). In particular, there is no evidence that at the relevant time there was in force a licence, permit or similar document issued in respect of the appellant or the Cloverdale property under the Local Government Act or the Health (Asbestos) Regulations or under a law connected to the Local Government Act or the Health (Asbestos) Regulations.
It was not sufficient for the respondent to say that the documents had been served on the appellant at an address that was merely 'the last recorded address' for him. The address had to be one at which he was last known to reside, work or conduct a business. There was nothing to suggest that he had resided, worked or conducted a business at the Cloverdale property at any time. Indeed, the information available to the respondent was to the contrary. The word 'reside' means to 'dwell permanently or for a considerable time, have one's regular home in or at a particular place' (Shorter Oxford English Dictionary 5th Ed). To work at a place must also, in this context, involve some significant degree of physical presence at the premises. To conduct a business at a place must involve the carrying on of business activities at the premises.
It is important to note that the requirement for service by post under cl 3 of sch 2 of the Criminal Procedure Act is more onerous than under some other statutory provisions. Other documents can be served by posting them to the 'last known address', without any requirement that it be an address at which the person has resided, worked or conducted a business: See, for example, s 9.50 and s 9.52 Local Government Act and s 75 Interpretation Act. The general provision as to service by post in s 75 of the Interpretation Act is subject to a contrary intention in specific legislation. Clearly the Criminal Procedure Act does express a contrary intention in sch 2 cl 3. The reasons for that are readily apparent; it is important that those who are charged with criminal offences (even if they be only simple offences) are informed of the charges and afforded a fair opportunity to defend them.
It is unnecessary to consider the deeming provision in relation to service contained in cl 3(11) of sch 2 of the Criminal Procedure Act.
In the circumstances of this case it was not established in the proceedings before Magistrate Bayly that the prosecution notice and court hearing notice had been properly served. The statement that they had been served at the 'last known' address for the appellant was not sufficient to meet the requirements of the Criminal Procedure Act. In fact, service had not been effected in the required manner.
Section 55 of the Criminal Procedure Act permits a magistrate to hear and determine a charge for a simple offence in the absence of the accused if the court is satisfied that the accused has been properly served with the prosecution notice and the court hearing notice. That section provides:
No appearance by accused and no plea of guilty
(1)This section applies if on a court date for a charge the prosecutor appears and the accused does not and the accused has not pleaded guilty to the charge, whether orally or by means of a written plea.
(2)If on the court date the court is satisfied that the accused has been served under this Part with the prosecution notice containing the charge and a court hearing notice, or an approved notice, notifying the accused of that date and that the court may deal with the charge in the accused’s absence if the accused does not appear on that date, the court may -
(a)adjourn the charge; or
(b)hear and determine the charge in the accused’s absence.
[(3)deleted]
(4)If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused’s absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court -
(a)must presume, in the absence of evidence to the contrary -
(i)that the prosecution notice was signed by a person who was acting under section 20(3); and
(ii)that the person had the authority to sign the prosecution notice;
and
(b)may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.
(5)If under subsection (4) the court convicts the accused -
(a)the prosecutor must state aloud to the court the material facts of the charge; and
(b)section 129(4) applies; and
(c)in the absence of evidence to the contrary, the court must take as proved any facts so stated.
Service of the prosecution notice and court hearing notice are critical to two steps in a hearing under s 55. Firstly, the court may only deal with the charge in the accused's absence if the court is satisfied that the accused has been served with the prosecution notice and the court hearing notice: s 55(2). Second, the court's ability to take as proved any allegation in the prosecution notice requires that that notice has been served on the accused: s 55(4)(b).
Proof of service was critical to the ability of the Magistrates Court to proceed with the hearing on 16 September 2011 under s 55. Whether or not that be described as a jurisdictional fact such as to justify the granting of an order under s 36 of the Magistrates Court Act is immaterial because that section provides that any application under s 36 can be treated as if it is an appeal under the Criminal Appeals Act if the court considers that such an appeal would lie: s 36(5). Such an appeal would lie in this case because the appellant was convicted of the offences in his absence on the basis of a material error of fact; that is, that he had been properly served with the prosecution notice and court hearing notice: Criminal Appeals Act s 8(1)(a)(i): Perry v Carrier [2013] WASC 299. Further or alternatively, convicting the appellant without having properly served him with the prosecution notice and court hearing notice would constitute a miscarriage of justice: Criminal Appeals Act s 8(1)(b).
The application to admit new evidence on the appeal should be granted because, although that evidence is inconclusive in regard to the first contention, it does support the conclusion in respect of the second contention that the appellant was not properly served with the prosecution notice and the court hearing notice. Also, it demonstrates that the appellant may have a reasonably arguable defence based on the first contention.
The consequences for the appellant are relevant in considering whether leave to appeal and an extension of time should be granted. Those consequences are as follows:
(1)he was convicted of two offences in his absence;
(2)he may have a reasonably arguable defence to the charges on the basis that he was not the 'owner' at the relevant time as defined in the Local Government Act and the Health Act;
(3)the fines imposed on him were significant and, being unpaid, have resulted in the suspension of his driver's licence.
It is appropriate to grant leave to appeal and an extension of time to appeal, grant the application to admit new evidence, allow the appeal, set aside the convictions and order a retrial. The respondent will, however, need to consider whether proceeding further against the appellant serves any useful purpose if he no longer has an interest in the property or has no capacity to pay any fine. I would also note that the utility of repeatedly prosecuting a person for offences of this nature might be questioned given that local governments have the power to do anything necessary to achieve the purpose for which a notice was given and to recover any costs in that regard: s 3.26 Local Government Act.
Conclusion
The review order in respect of the decision of Magistrate Heaney was without merit and was correctly refused for the reasons given. However, the review order in respect of the decision of Magistrate Bayly should have been treated as an appeal and that appeal allowed.
For the reasons I have given this appeal should be allowed. I would make the following orders:
(1)Extension of time to appeal granted.
(2)Leave to appeal granted.
(3)Application to admit new evidence granted.
(4)The appeal be allowed.
(5)The order of the primary judge dated 10 October 2013 dismissing the review order relating to the decision of Magistrate Bayly and the costs order made by the primary judge be set aside and in lieu thereof it be ordered that the application be treated as an appeal under the Criminal Appeal Act, that that appeal be allowed, that the convictions and costs orders on charge numbers 11/39065 and 11/39066 be set aside and that there be a retrial.
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