Stewart v Grigsby

[2025] TASSC 38

[2025] TASSC 38

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Stewart v Grigsby [2025] TASSC 38
PARTIES:	STEWART, Errol Clayton
STEWART FAMILY TASMANIAN INVESTMENTS
PTY LTD
v
GRIGSBY, Kelly (HOBART CITY COUNCIL)
FILE NO:	496/2024
DELIVERED ON:	8 August 2025
DELIVERED AT:	Hobart
HEARING DATE:	12 June 2025
JUDGMENT OF:	Shanahan CJ
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Interlocutory application in motion to review for preliminary partial remittal to Magistrate's Court for further and better reasons as to the criminal liability of defendants found guilty by magistrate of contravening s 63(3) of the Land Use Planning and Approvals Act 1993 (Tas) – Magistrate's reasons did not identify whether first defendant actually committed, instigated, aided, or abetted the offences – Magistrate's reasons inadequate due to failure to identify the basis on which defendants criminally responsible – Interlocutory application allowed.

Aust Dig Magistrates [1349]

Legislation:
Criminal Code, s 330
Justices Act 1959, ss 3, 63, 73, 110(2A)

Land Use Planning and Approvals Act 1993, ss 12, 63(3)

Cases cited:
Jones v Bonde [2022] TASSC 19; Robinson v Chatters [2010] TASSC 66, applied.
Phillips v Arnold [2009] TASSC 43; Jotheeswaran v Barnes [2019] TASSC 42, considered.

Statutes – Acts of Parliament – Statutory powers and duties – Construction – Conferral and extent of power – Whether power of Supreme Court to remit a magistrate's decision for further and better reasons under s 110(2A) of Justices Act 1959 extends to interlocutory proceedings – Absence of express reference under s 109 to exercise of power to remit at an interlocutory stage of proceedings under s 107 of Justices Act 1959 does not preclude it – Court has broad discretion to exercise power under s 110(2A) conditioned by factors including the efficacy of the remittal, the interests of justice, and the principles of case management.

Aust Dig Statutes [1164]
Legislation:
Interpretation Act 1931, s 46
Magistrates Court Act 1987, s 31(2)

Justices Act 1959, ss 107, 108, 109, 110(2A), 110(2B)

Cases cited:
Bonde v Bluett [2019] TASSC 14; Bonde v Maney [2018] TASSC 23; Szabo v Moore (2018) 29 Tas R 397,
considered.

Cowen v Estcourt [1976] Tas SR 113; R v Hall [1988] Tas R 74, referred to.

REPRESENTATION:

Counsel:

Appellants:	A Spence SC
Respondent:	C Scott

Solicitors:

Appellants:	Page Seager
Respondent:	Simmons Wolfhagen

Judgment Number:	[2025] TASSC 38
Number of paragraphs:	76

Serial No 38/2025 File No 496/2024

ERROL CLAYTON STEWART and STEWART FAMILY TASMANIAN

INVESTMENTS PTY LTD v KELLY GRIGSBY (HOBART CITY COUNCIL)

REASONS FOR JUDGMENT	SHANAHAN CJ 8 August 2025
The interlocutory application

1 On 12 June 2025 I heard the respondent Council's interlocutory application for a preliminary partial remittal in this application for review pursuant to s 107 of the Justices Act 1959 ("Justices Act") by Mr Errol Clayton Stewart ("Mr Stewart") and Stewart Family Tasmanian Investments Pty Ltd ("the company").

2 The respondent seeks an order pursuant to s 110(2A) of the Justices Act that, prior to the Court making any determination with respect to the grounds in the notice of review dated 22 February 2024, that the Court order:

"The application for review be remitted to Magistrate Marron with a direction that, within 8 weeks, Magistrate Marron provide further and better reasons with respect to paragraphs [51]–[55] of the reasons for decision as to whether the First Appellant was guilty as a principal offender, enabler, or abettor or instigator."

3             Paragraphs [51]-[55] of the magistrate's decision dealt with the nature of the criminal responsibility put against Mr Stewart, ie whether he was criminally liable as a principal offender or otherwise.

4   Section 110 provides, inter alia:

"110 Powers of Supreme Court

(2A)	If the court considers that the reasons given for making the order under review are insufficient, it may, before doing anything under subsection (2) , remit the matter to the justices who made the order with a direction to furnish the court with further and better reasons within such time as the court specifies.
(2B)	If subsection (2A) applies, the court must cause the further and better reasons to be made known to the parties to the notice to review as soon as practicable after they have been furnished to the court and, in any event, before the court proceeds to do anything under subsection (2)."

The application for review – the background to the interlocutory application

5 The substantive application for review arises consequent upon a prosecution under the Justices Act, in relation to an alleged breach of s 63(3) of the Land Use Planning and Approvals Act 1993 ("LUPA Act"). The prosecution was brought in respect of an asserted "development", being work done without a permit, on the garden at 2 Red Chapel Avenue, Sandy Bay ("the property") said to have been undertaken by Mr Stewart and the company (together the applicants for review).

6 Both Mr Stewart and the company were charged as principal offenders under s 73 of the Justices Act. In their submissions to the magistrate the applicants' primary contention was that the prosecution must fail because neither of the applicants undertook "development" as that term is properly construed under s 63(2) of the LUPA Act.

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7             In early 2021 the company (of which Mr Steward was a director) purchased 2 Red Chapel Avenue, Sandy Bay ("the property"). The prosecution arose from alleged action taken by Mr Stewart and the company in making changes to the property's garden, changes said to require a permit, in circumstances where no permit had been obtained.

8             Two complaints were made by the Chief Executive Officer of the City of Hobart, Kelly Grigsby on 17 September 2021, they were issued and dated 22 September 2021 being complaints No 21/91086 and No 21/91087.

9            The allegations in complaint No 21/91086 were made against Mr Stewart and endorsed on that complaint in the following terms at "Annexure A":

"Date of alleged	Between 17 March 2021 and 15 April 2021
Offence(s):
Charge:	Undertake development contrary to Hobart Interim Planning Scheme 2015
Breach of:	Land Use Planning and Approvals Act 1993, section 63(3)
Particulars:	Between 17 March 2021 and 15 April 2021, you undertook a development at the property known as 2 Red Chapel Avenue, Sandy Bay in Tasmania, more particularly described … (the property), being the demolition or works to remove the garden or part thereof on the property (the development). The development required a planning permit be issued pursuant to the Hobart Interim Planning Scheme 2015, and no such permit was issued prior to the development being undertaken."

10           Details of the manner in which Mr Stewart was said to be criminally responsible were also endorsed on the complaint under the heading "Further and Better Particulars of Criminal Responsibility", in that it was alleged that Mr Stewart had:

"(a)	Justices Act 1959, section 73(1)(a)
actually committed the offence particularised in "Annexure A" of the complaint and summons.
(b)	Justices Act 1959, section 73(1)(b)
done any act or made any omission for the purposes of aiding or enabling Stewart Family Tasmanian Investments Pty Ltd … (the Company) and/or persons unknown to commit the act of developing the property by demolishing or undertaking works to remove the garden or part thereof on the property without a planning permit being issued.
(c)	Justices Act 1959, section 73(1)(c)
abetted the company and/or persons unknown to commit the act of developing the property by demolishing or undertaking works to remove the garden or part thereof on the property without a planning permit being issued.
(d)	Justices Act 1959, section 73(1)(d)
instigated the company and/or persons unknown to commit the act of developing the property by demolishing or undertaking works to remove the garden or part thereof on the property without a planning permit being issued."

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11          The allegations in complaint No 21/91087 were made against the company and endorsed on that complaint in the following terms at "Annexure A":

"Date of alleged	Between 17 March 2021 and 15 April 2021
Offence(s):
Charge:	Undertake development contrary to Hobart Interim Planning Scheme 2015
Breach of:	Land Use Planning and Approvals Act 1993, section 63(3)
Particulars:	Between 17 March 2021 and 15 April 2021, you undertook, or permitted or allowed a development to be undertaken at the property known as 2 Red Chapel Avenue, Sandy Bay in Tasmania, more particularly described … (the property), being the demolition or works to remove the garden or part thereof on the property (the development). The development required a planning permit be issued pursuant to the Hobart Interim Planning Scheme 2015, and no such permit was issued prior to the development being undertaken."

12           The primary difference between the complaints is that whilst both Mr Stewart and the company are each charged with having undertaken the impeached development contrary to Hobart Interim Planning Scheme 2015, the basis for Mr Stewart's criminal responsibility is cast in the alternative, and the company (in complaint No 21/91087) is said to have committed the offence by undertaking, permitting or allowing that development.

13   Mr Stewart pleaded "not guilty" on his own behalf and on behalf of the company of which he

is a director.

14          The property had been transferred to the company by 17 March 2021, and the property at the material times nominated in each complaint was legally owned by the company not Mr Stewart.[1]

[1] Grigsby v Stewart and Stewart Family Tasmanian Investments [2023] TASMC per Magistrate R Marron [7].

15           Following closure of the prosecution case before the learned magistrate the appellants (defendants) made a "no case" submission.[2] The basis of the "no case" submission was an interpretation of s 12 of the LUPA Act which deals with the application of the Tasmanian Planning Scheme, ie that s 12 addresses transitional issues so as to identify when the Hobart Interim Planning Scheme applies to existing use and development of land upon the introduction of the Scheme:

[2] Grigsby v Stewart and Stewart Family Tasmanian Investments [2023] TASMC per Magistrate R Marron considering

"12

Existing uses and developments

(1)

Subject to subsections (5), (6) and (7), nothing in a provision of a planning scheme, or of the Tasmanian Planning Scheme, in relation to a municipal area is to be taken (including by virtue of requiring a permit to be obtained) to –

(a)	prevent the continuance of the use, of any land, in the municipal area, upon which buildings or works are not erected, for the purposes for which the land was being lawfully used immediately before the provision came into effect; or
(b)	prevent –

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(i)          the use, of any building in the municipal area that was erected before that provision came into effect in relation to the municipal area, for any purpose for which the building was lawfully being used immediately before the provision came into effect in relation to the municipal area; or

(ii)         the maintenance or repair of such a building; or

(c)	prevent the use, of any works constructed in the municipal area before the provision came into effect in relation to the municipal area, for any purpose for which the works were being lawfully used immediately before the provision came into effect in relation to the municipal area; or
(d)	prevent the use of any building, or works, in the municipal area, for any purpose for which it or they were being lawfully erected, or carried out, immediately before the provision came into effect in relation to the municipal area; or
(e)	require the removal or alteration of any lawfully constructed buildings, or works, in the municipal area.

…

(5)

Subsections (1) , (2) , (3) and (4) do not apply to, or in relation to, a use of
land –

(a)	that has stopped for a continuous period of 2 years; or
(b)	that has stopped for 2 or more periods which together total 2 years in any period of 3 years; or
(c)	that is seasonal in nature, if the use does not take place for 2 years in succession.

(6)

Subsection (1) does not apply to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land.

(7)

Subsections (1) , (2) , (3) and (4) do not apply to, or in relation to, a use, of
any land, building or work, that is substantially intensified."

16           It was submitted to the magistrate that "use" in this case was the use of the garden by the people who had occupied it and kept it. As to "any works constructed", "for any purpose for which the works were being lawfully used", it was submitted that applied to the garden and the ongoing maintenance of the garden at the property.

17   The magistrate examined the definitions of "development", "use" and "works" under the

LUPA Act: "Development includes –

(a)	the construction, exterior alteration or exterior decoration of a building; and
(b)	the demolition or removal of a building or works; and
(c)	the construction or carrying out of works; and
(d)	the subdivision or consolidation of land, including buildings or airspace; and

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(e)	the placing or relocation of a building or works on land; and
(f)	the construction or putting up for display of signs or hoardings –

but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition.

use, in relation to land, includes the manner of utilising land but does not include the
undertaking of development.

works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices, as defined in the Forest Practices Act 1985, carried out in State forests."

18 The magistrate declined the "no case" submission on his view that the provisions of s 12 "were not satisfied as to exclude the Scheme".[3]

[3] Grigsby v Stewart and Stewart Family Tasmanian Investments [2023] TASMC considering the "no case" submission

19          The magistrate included a chronology in his reasons that he had "distilled" from those provided by the parties, the chronology included those items upon which the parties agreed:

"December 2020 to

21 February 2021:	Mr Stewart retained Heritage Consultant (Purcell), Landscape Architects Play Street Pty Ltd (Carl Turk), planning consultants ERA, Austral Tasmania (Historical Research), Architects and Designers (Artas), Alister Hodgman Element Tree Services, and supplying a copy of the Garden Heritage Analysis – Barwick 1997 and plan (Exhibit D18)
17 February 2021	Site visit by Ms Small
22 February 2021	Transfer of ownership of 2 Red Chapel Avenue to the company Inspection of property by Mr Stewart and first removal of ivy climbing oak tree by him by hand (Exhibit D12)
16 March 2021	Date of registration of transfer of the property
Inspection of garden by Steve Brown
17 March 2021	Mr Stewart and the company retain Irwin Clements (Special Tree Service)
Unknown	Prior to removal of ivy, attendance by Mr Stewart with employee to remove garden plants, shrubs and bushes.
7 April 2021	Second site visit by Ms Small
13 April 2021	Council receive complaint of a bulldozer operating in the garden of the property
14 April 2021	Ms Alexandria Costin (Cultural Heritage Officer) took photographs of garden from outside the property
15 April 2021	Tom Rolfe (HCC Legal Officer) and Jonathon Tyrrel (HCC Inspector) attended the garden and took photographs

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20 April 2021	The HCC request documents pursuant to s 65J of the LUPA Act
21 April 2021	Response to the HCC request by Play Street Pty Ltd
27 April 2021	Response to the HCC request buy real estate firm
17 May 2021	Mr Stewart attends upon employees at HCC Council Chambers
11 June 2021	D/A PLN-21-397 lodged
30 July 2021	D/A PLN-21-397 advertised
12 August 2021	Issue of Infringement Notice
24 August 2021	Request by Mr Stewart that the HCC withdraw the Infringement Notice
27 August 2021	Planning Permit for partial demolition and alterations to house, extension and landscaping
16 September 2021	HCC refuse to withdraw the Infringement Notice"

The magistrate's reasons - paragraphs [51]-[55]

20 The magistrate's analysis began with an account of the charges ([50]-[62]). He started by identifying the material time during which the conduct impeached by the complaints was said to have occurred. He then acknowledged the different bases for criminal culpability upon which Mr Stewart had been charged, at [51]:

"The complaint against Mr Stewart alleges that he committed the offence and did an act or made an omission for the purpose of aiding or enabling, abetting and instigating the company and/or persons unknown to commit the act of developing the property by demolishing or undertaking works to remove the garden or part thereof on the property without a planning permit being issued".

21 This is a paraphrase of the relevant particulars on complaint No 21/91086 which recite the provisions of ss 73(1)(a), (b), (c) and (d) of the Justices Act. It is equally clear that those provisions are cast in terms that identify different types of criminal culpability and the nature of those who are said to be "parties to the offence" (Italics added):

"73 Accessories

(1)

Subject to any contrary intention in the Act creating the offence, where a simple offence is committed, each of the following persons is deemed to be a party to, and to be guilty of, the offence, and may be charged with actually committing it, namely:

(a)	a person who actually commits the offence;
(b)	a person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence;
(c)	a person who abets another person in committing the offence;
(d)	a person who instigates another person to commit the offence.

(2)

A person who instigates another person to do an act or make an omission of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted a simple offence on his part, is guilty

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of the same offence as if he had himself done the act or made the omission,

and may be charged with himself committing the offence.

(3) A person who is alleged to have instigated, aided, or abetted the commission of a simple offence may be convicted upon a complaint charging him with having committed the offence, or upon a complaint charging him with having instigated, aided, or abetted, as the case may be, the commission thereof."

22 That is no doubt why the magistrate, immediately after paragraph [51], then set out the terms of s 73 of the Justices Act at [52] of his reasons.

23 Section 73 of the Justices Act whilst dealing with "simple offences" is similar to the treatment of "crimes" at s 3 of the Criminal Code 1924 (Tas) ("the Code"); see also s 7 of the Criminal Code 1899 (Qld) and s 7 of the Criminal Code 1913 (WA). Section 330 of the Code reinforces the provision at s 3 in respect of "crimes", and has been described as " … providing that the form of the charge is technically irrelevant. D may be convicted whether he is charged as a principal offender, 'having committed the crime' or as an aider, abettor or instigator" (Italics added):[4]

[4] Blackwood, J and Warner K, Tasmania Criminal Law: Text and Cases, Volume 1, p 399

"330 Parties to crimes

(1)

Any number of persons who are alleged –

(a)	to be parties within the meaning of the Code to the same crime (notwithstanding that some other party or parties to that crime is or are not included in the indictment or is or are not amenable to justice); or
(b)	to have committed different crimes arising substantially out of the same facts or closely related facts –

may be joined in the same indictment and tried together or separately.

…

(3) Any party to whom subsection (1) relates who is alleged to have instigated, aided, or abetted the commission of a crime may be convicted upon a count charging him with having committed the crime, or upon a count charging him with having instigated, aided, or abetted, as the case may be, the commission thereof."

24 Of course, a charge under s 63(3) of the LUPA Act is a "simple offence" not a crime, s 3 of the Justice Act defines "simple offence" as:

"simple offence means any offence (indictable or not) punishable, on summary
conviction before justices, by fine, imprisonment, or otherwise."

25 There is no provision similar to s 330 of the Code in the Justices Act.

26 The legal elements that must be proved under the different subparagraphs of s 73(1) to convict a person charged, differ depending upon whether they are charged as (i) the person who actually committed the offence, (ii) a person who does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence, (iii) a person who abets another person in committing the offence, or (iv) a person who instigates another person to commit the offence. Thus, if a person is convicted with committing a crime as an "enabler" or "aider" the nature of the elements to

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be proved beyond a reasonable doubt differ from those required to convict a person as an "abettor" or as an "instigator". Certainly one such mode must be proved to convict a person of a simple offence in accordance with s 73(1) of the Justices Act.

27          It was submitted before the magistrate that there was no evidence as to who undertook the works impeached by the complaints. The magistrate found at [54] that:

"It was Mr Stewart's evidence that he himself commenced working at the property removing the ivy by hand and then engaging Irwin Clements (Specialist Tree Service) to undertake the further work. Mr Stewart agreed in cross examination that he had removed five trees, 20 truck loads of ivy and some plants that were removed between March and April."

28 It appears that the magistrate has relied upon the agreed chronology as the basis for his finding that Mr Stewart's evidence was to the effect that he commenced working at the property removing the ivy by hand between 17 March 2021 - 7 April 2021 (see [19] above), but that is not a matter upon which I need to focus. It was, however, in the context of that finding that the magistrate found, at [55], "In those circumstances section 73 of the Justices Act encompasses the alleged conduct".

29 The ultimate finding at [55] might have been better expressed in terms of how it was said that Mr Stewart's conduct, as found, was encompassed by s 73(1) (ie how it was found to fall within s 73(1), ie under s 73(1)(a), (b), (c) and/or (d)). The implication is that to the extent that the description at paragraph [55] identifies Mr Stewart as responsible for either removing the vegetation, or having the vegetation removed, the magistrate was referring to conduct that he found satisfied s 73(1), but without identifying how that conduct did so; i.e. was the reference to "he" at line 3 above a reference to Mr Stewart or "Irwin Clements"? To the extent that Mr Stewart engaged a third party for the removal of vegetation the magistrate has not identified how he categorised that conduct for the purposes of s 73(1).

30           It is noted that the magistrate found, at [57], that Mr Stewart was "a director and shareholder of the company and consequently a person who could exercise control and represent the company and its interests, the company being the registered proprietor of the property". Further, that on this basis the company was guilty, ie at [59], "In so far as the actions of Mr Stewart are considered to be the actions of the company and there has been no suggestion by Mr Stewart that it was otherwise the case, the charge sustains to the allegations of … [the company] … undertaking … [the impeached development]".

31           The magistrate then makes a series of findings under the headings "state of the garden at 7- 15th April and the nature of the work performed" [63]-[65]; "Did the acts amount to a 'development'" [66]-[67]; "Did the work require a permit?" [68]-[79]; "Was the work exempt from any requirement to obtain a permit under the planning scheme?" [80]-[82]; "Requirements under the LUPAA" [83]-[86]; "Mr Stewart's Belief" [87]-[101]; before the ultimate findings at [102]-[103]:

"[102] For the reasons I have set out I am satisfied that the actions taken by the Defendants as detailed in the charges and sustained in the evidence put before the Court amounted to a development under the Hobart Interim Planning Scheme that was not otherwise exempt and that required a permit. No permit was sought or obtained.

[103]     I find the charges against each defendant proven."

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32 Thus, the question arises whether the matter should be remitted under s 110(2A) of the Justices Act for further and better reasons to clarify the basis (under s 73(1) of the Justices Act) upon which the magistrate ultimately found Mr Stewart guilty as charged?

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Submissions in respect of the application for partial remittal

33 The respondent in making this interlocutory application accepts that the magistrate "did not state the reasons for decision which subparagraph or subparagraphs of s 73(1) of the Justices Act applied to the conduct of Mr Stewart.[5]

[5] Respondent's written submissions dated 29 May 2025 p 3 at [8].

34 It is submitted that the lacuna identified in the reasons by the respondent can be remedied by remittal back to the magistrate under s 110(2A) of the Justices Act and cites in aid the decision of Pearce J in Jones v Bonde [2022] TASSC 19. It is further submitted that such a remittal would narrow the grounds of review, there are 25 grounds on the notice of review.

35           In Jones v Bonde the applicant was found guilty of aggravated assault by a magistrate. The application for review was, ultimately, based on two grounds, one of inadequacy of reasons and the second, that no magistrate acting reasonably could have been satisfied beyond reasonable doubt as to the guilt of the accused.

36           In respect of the first ground, Pearce J acknowledged the general obligation of magistrates to give adequate reasons for their decisions: Phillips v Arnold [2009] TASSC 43, Tas R 21, per Crawford CJ at 19; Robinson v Chatters [2010] TASSC 66 per Wood J at [73] –[77], and Blow CJ in Jotheeswaran v Barnes [2019] TASSC 42. Pearce J noted that in Jotheeswaran v Barnes, Blow CJ said at [14]:

"It is well established that, with rare exceptions, judges and magistrates have a duty to give adequate reasons for their decisions, and a failure to give adequate reasons amounts to an error of law: Pettit v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Phillips v Arnold [2009] TASSC 43; 19 Tas R 21. When a magistrate finds a charge proved beyond reasonable doubt on the basis that the evidence of one witness is preferred to that of another witness, the duty to give adequate reasons requires the magistrate to explain why he or she has preferred the evidence of a particular witness: Phillips v Arnold at [53]–[67]."

37           It is important, as acknowledged by Wood J in Robinson v Chatters at [70]-[71], that a judicial officer give reasons that expose the pathway of reasoning that has led to the result. Adequate reasons are required to inform the parties as to the basis of the decision, the need for open justice and to allow a court reviewing a decision to properly examine its foundations.

38           In Jones v Bonde a central allegation was that the accused had pointed a loaded shotgun at the complainant. However, at no stage did the magistrate give any reasons as to why she accepted the evidence of the complainant in this regard, or why she rejected the accused's denial. As Pearce J observed in making an order under s 110(2A) of the Justices Act, at [24]-[25]:

"… the reasons contain little to suggest why it was that her Honour accepted one version in favour of the other. The absence of that sufficient explanation is highlighted when it is apparent from the comments that the magistrate did make that she did not accept some aspects of Ms Pearce's evidence."

39   The applicants for review oppose the partial remittal application on five primary bases:[6]

[6] Applicants' written submissions dated 6 June 2025 at [8].

[8]  In summary the … [applicants] … submit that the Partial Remittal Application should not succeed because:

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(a)	section 110(2A) of the Justices Act is unique to Tasmania and has narrow application. The power under s 110(2A) has been considered only four times and appears never to have been utilised to require further and better reasons at an interlocutory stage against opposition. In our submission, there would be only very limited circumstances in which this power could or should be utilised, and those circumstances are not present here.
(b)	the errors made by the learned Magistrate are not capable of being cured by the Magistrate providing further and better reasons for his findings at paragraphs [51]-[55], because the errors and inadequate aspects of the reasons go beyond those paragraphs and, read in context, are the product of a misunderstanding by the legal Magistrate of the legal test he was required to apply. They cannot be remedied by simply supplying some additional wording to clarify which subsection of s 73 of the Justices Act was relied upon. The narrow remittal proposed by the … [respondent] … is therefore without utility;
(c)	a broader question of the basis for the First Appellant's criminal liability should not be remitted to the Learned Magistrate because to do so would be outside the scope of s 110(2A) of the Justices Act;
(d)	there are good reasons not to allow the original decision-maker to re- write his decision. If the matter were to be remitted. It would more appropriately be remitted to a different magistrate (noting that this relief is not available under s 110(2A)); and
(e)	if the order sought by the Respondent were made, this would fragment the issues on appeal and could lead to further disputes. It is simply not in the interests of justice and is contrary to the principle of judicial economy for the ….[application for review] … to be progressed in the manner contended for by the Respondent."

Consideration

40 Section 110(2A) of the Justices Act is a curious provision, one that the parties agree is unique to Tasmania. Essentially, it permits this Court to remit a magistrate's decision for further and better reasons. The provision appears in Part XI of the Act "Motions to Review, Appeals and Similar Proceedings".

41 Division 1 of Part XI, at ss 107–113 inclusive, deals with "Motions to Review to the Supreme Court and Hearings De Novo".

42 Section 107(1) makes provision for a person aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order.

43 "Justice" is defined at s 46 of the Acts Interpretation Act 1931 as "shall mean a justice of the peace". Section 13(2) of the Magistrates Court Act 1987 makes provision that "a magistrate by virtue of his or her office without further commission or authority, is a justice".

44 Section 38(1) of the Acts Interpretation Act states:

"(1) Where a provision of an Act expressly or by implication provides –

(a) that any matter or proceeding is to be heard and determined, or dealt with, summarily or by or before justices or a court of summary jurisdiction; or

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(b) that an offence is punishable on summary conviction or that a person is liable on summary conviction to a specified penalty or to a penalty not exceeding a specified penalty –

the matter or proceeding shall be heard and determined, or shall be dealt with, or, as the case may be, the proceedings in respect of the offence shall be taken, in accordance with the Justices Act 1959, and any penalty imposed in respect of the matter, proceeding, or offence may be enforced and recovered as provided by the Sentencing Act 1997."

45 The substantive proceeding before the Court in this matter is a motion moving a "notice of review" of the decision by the magistrate under s 107 of the Justices Act; refer to s 107(2)(a) of the Justices Act. The requirements of such a notice are set out at s 107(4), they are:

"(4)

The grounds set forth in a notice to review shall allege –

(a)	an error or mistake on the part of the justices on a matter or question of fact alone, or of law alone, or of both fact and law; or
(b)	that the justices had no jurisdiction to make the relevant order."

46 It is to be noted for the purposes of this matter that a decision that there is a case to answer is not reviewable under s 107: Cowen v Estcourt [1976] Tas SR 113 per Chambers J at 117.

47          The Court has power to allow a party upon hearing of a motion made of a notice to review, to amend the grounds of the notice (s 108).

48 Section 109 of the Justices Act is entitled "Interlocutory proceedings", and provides at s

109(1):

"109 Interlocutory proceedings

(1)

On the application of a person who has filed or been served with a notice to review, a judge may, ex parte or on summons to such parties as he requires or the rules or practice of the court require –

(a)	vary the return day of the notice to review;
(b)	impose conditions as to costs and security to be complied with before the motion is heard;
(c)	stay proceedings on the order or suspend the operation thereof ab initio; and
(d)	admit the applicant for the review to bail –

in his discretion and on such terms as to costs and otherwise as he thinks fit."

49 It is noted that s 109 does not expressly encompass an application to exercise power under s 110(2A) of the Justices Act, thus raising the question whether s 109 is intended to add to the powers that may be exercised at an interlocutory stage in proceedings upon a notice to review, or to limit the matters that may be dealt with at an interlocutory stage, such as to exclude the exercise of the power under s 110(2A).

50           Section 110 is a lengthy provision. Section 110(2) sets out the powers of a single judge (italics added) "on the hearing of a motion to review". That is important in a proper construction of s

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110(2A) because it explains when the powers conferred under both s 110(2A) and s 110(2B) can be
exercised. Both those provisions are set out at [4] above.

51 Section 110(2A) envisages that the power of remittal conferred by that subsection "may" be exercised "before doing anything under subsection (2)". As subsection 110(2) deals with what is to occur "on the hearing of a motion to review" the exercise of the power at s 110(2A) is clearly intended to be exercised prior to such a hearing.

52 Indeed, the text and structure of s 110(2A) begs the question whether the power to order a remittal subsists after the doing of anything under s 110(2)? In that regard it is noted that, under s 110(2B) if the power of remittal is exercised under s 110(2A) and any further and better reasons of the magistrate are provided to the Court, then:

"… the Court must cause the further and better reasons to be made known to the parties to the notice to review as soon as practicable after they have been furnished to the court and, in any event, before the court proceeds to do anything under subsection (2)."

53 The effect of s 110(2B) may best be understood as referring to proceedings pursuant to s 107 in respect of any further and better reasons, such that those reasons must be distributed before any hearing of the notice to review upon the supplemented reasons and prior to any ultimate determination. That would mean that the power of remittal subsists after a court has taken a step under subsection 110(2) but before that court has determined the matters arising upon the motion, but that is not a question that arises for decision here where no step has yet been taken under s 110(2). It is noted in the latter regard that Underwood J in R v Hall [1988] Tas R 74 found that once such a motion to review has been determined, the Supreme Court is functus officio.

54 The reference to when the power under s 110(2A) is to be exercised confirms, at least, that any remittal may occur prior to a hearing under s 110(2). That is logical as any hearing under s 110(2) should only take place once the court is satisfied that the magistrate's reasons are adequate, in the sense that any remittal has been made and further and better reasons have been provided.

55 For those reasons the absence of a reference to an exercise of the power conferred under s 110(2A) in s 109 (dealing with interlocutory proceedings), does not preclude the exercise of that power at an interlocutory stage of proceedings pursuant to s 107. Indeed, putting to one side whether the power subsists after a hearing has commenced under s 110(2), that would appear to be the better practise in any event.

56 Where the parties are agreed on an inadequacy in the magistrate's reasons it would appear consistent with the principles of case management that such further and better reasons, as might be sought, be sought as soon as possible and certainly before the substantive issue is listed before a judge to determine the grounds pleaded in the notice of review. But such agreement can never bind the Court and there must always be an independent assessment of the merits of a remittal under s 110(2A).

57 Helpfully, the applicants have provided an excerpt from the second reading speech upon the introduction of s 110(2A) as part of a compendium in the Justice Legislation (Miscellaneous Amendments) Bill 2001, when the then Minister for Infrastructure, Energy and Resources, the Hon Paul Lennon observed:

"Now I bring to mind one case I remember quite distinctly where, through no fault of anybody, the tapes in the Magistrates' Court were wiped. There was no transcript available of the actual detailed decisions handed down by the magistrate. This was some years ago, I should add. When the matter went on appeal, counsel were trying

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to rely upon their notes of what the magistrate had said, and I must say without any disrespect to the magistrate who is no longer ion the bench, he was not always distinct and easy to hear, let alone sometimes to understand. But we both got it wrong as to the main reasons and in that situation it placed the Supreme Court judge in the most impossible position. What the amendment does, which I think is eminently sensible, is for the judge to say, look there are insufficient reasons here, for whatever reason I want to know exactly the basis upon which the magistrate made the decision and send it back."[7]

[7] Tasmania, Parliamentary Debates, House of Assembly, 30 August 2001, Minister for Infrastructure, Energy and

58 The power conferred by s 110(2A), given that it was intended to deal with circumstances in which a Supreme Court judge considers "there are insufficient reasons … for whatever reason", goes well beyond a remedy where an accurate, or full, copy of the transcript of a proceeding in the Magistrates Court is unavailable.

59 None of the authorities cited in argument proffer significant assistance in the proper construction of s 110(2A), to which I return below.[8]

[8] Szabo v Moore (2018) 29 Tas R 397; Bonde v Bluett [2019] TASSC 14; Bonde v Maney [2018] TASSC 23; Vincze v

60   I have dealt with Jones v Bonde above.

61           In Szabo v Moore Geason J refused an application to remit under s 110(2A) but did not consider the construction of the provision.[9] In Bonde v Bluett, Brett J made a referral under s 110(2A) for further and better reasons on the question of the reasonableness of the force used by the accused in the context of two counts of common assault, the remittal was made in the context of the parties agreeing to that course and again, there was no need for any exposition on the construction of the provision.[10] In Bonde v Maney, Brett J refused to remit the matter back to the magistrate under s 110(2A) on the basis of the magistrate's reasons before him were flawed and that "fundamental factual issues remained unresolved" and which could not be cured by such a remittal. In other words, if extensive further fact finding is required a remittal for further and better reasons would be redundant.

[9] Szabo v Moore per Geason J at [27]-[28]

[10] Bonde v Bluett per Brett J at [15]-[17]

62           Vincze v Judges dealt with the construction of s 110(2AA) of the Justices Act, not s 110(2A).

63 Whilst it may be acknowledged, as submitted by the applicants, that the power conferred by s 110(2A) has received only limited judicial consideration, that does not mean that it may only be exercised in very limited circumstances, the provision speaks for itself. The Court's power under s 110(2A) is not circumscribed by the positions taken by the parties, it cannot be precluded by an absence of agreement between the parties as to its exercise, nor the ambit of a remittal be limited by the terms of the remittal sought.

64           Brett J in Bonde v Maney identifies some of the matters that may limit the efficacy of such a referral and militate against an exercise of the power, but the language used by the Minister in the second reading speech as to the reasons for introducing the provision is couched in very broad terms, ie where "there are insufficient reasons … for whatever reason". The Court has a broad discretion as to the exercise of the power under s 110(2A) and its exercise will be conditioned by factors that include the efficacy of a remittal in the circumstances before the Court, the interests of justice, and the principles of case management.

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65           It is noted that in this instance there are 25 grounds of review (as currently pleaded) and that no attempt could be made upon an interlocutory application, such as this, to form any concluded view as to the merits of the review sought, and indeed that is not the function of a judge hearing an application for remittal under s 110(2A), especially given that it is to be exercised before any step is taken under s 110(2).

66           The written submissions filed by the applicants (24 pp) sought to encourage the Court to a detailed assessment of all of the grounds of review, essentially asking the Court to conduct the review sought. Indeed the length of these reasons demonstrates the extensive nature of the applicants' opposition to the remittal sought.

67 It is accepted that to the extent that an assessment of the merits is an integer to be considered in making an order for remittal under s 110(2A), a preliminary assessment of the merits may be relevant, not unlike the assessment made when determining other interlocutory matters such as whether to extend time within which to appeal.

68           It is submitted by the applicants that any remittal in the terms sought by the respondent is without utility. That is unclear at this juncture in the proceedings. The applicants are seeking to amend the notice of review, the grounds are numerous and prolix. Whether a remittal is made does not represent any conclusive disposition of the motion for review itself, and any assessment of the merits is at a preliminary level prior to hearing and merely for the purposes of considering whether a remittal should be made. Of the 25 grounds many of them are directed to the inadequacy of the magistrate's reasoning in the section titled "The Charges", reasons that fall between [50]-[62] of those reasons.

69   An example of how the remittal may assist is provided by the applicants' own written

submissions at [78]:

"The learned Magistrate then states "he removed five trees, 20 truck loads of ivy and some plants that were removed between March and April". It is unclear who the "he" is intended to refer to (be it Mr Stewart or Irwin Clements), but to the extent that it is intended to refer to Mr Stewart, and to the extent that this finding underpins the ultimate finding of guilt against the First Appellant …[Mr Stewart] … it is clear that the learned Magistrate has made an erroneous factual finding as there was no evidence to suggest that Mr Stewart himself carried out any work other than the removal of ivy by hand. If that error has been made, it is not capable of being cured by the supply of further and better reasons as to why subsection 73 is invoked … [refer to [28] above]."

70 There is, as acknowledged by the applicants in paragraph [78] of their submissions, evidence that Mr Stewart physically participated in the removal of ivy, albeit by hand. The applicants' submissions at [80] appear to draw a distinction between the removal of ivy by hand and "works", but it is not said how that is, or could be, consistent with the definition of "works", see [17] above. There is also evidence that Irwin Clements removed trees, ivy and plants. The nature of the finding as to who removed what is ambiguous in the use of the pronoun, "he". Further and better reasons can explain to whom the magistrate was referring without requiring any new finding of fact. Equally, the basis for the application of s 73(1), the nature of Mr Stewart's criminal responsibility can then be explained. Those reasons cannot include new fact finding.

71           Paragraph [81] of the applicants' submissions seeks to characterise what the magistrate did (refer to "presumably" at line 1), this Court should not have to speculate as to the reasons for decision where they can be clarified by further and better reasons. The submissions at [83]-[84] would require speculation as to the nature of any further and better reasons provided by the magistrate. I am not prepared to do so.

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72           It is submitted by the applicants that the grounds of review are far wider than the flaws that might be addressed in remitting the matter for further and better reasons of paragraphs [51]-[55] of the magistrate's reasons. That may ultimately be found to be so, and the applicants will have a chance to advance their case when a hearing is conducted pursuant to s 110(2). It seems readily apparent however that further and better reasons may well clarify the basis upon which the magistrate held Mr Stewart criminally responsible. That clarification is in the interests of the parties as it will better enable a court hearing the matter under s 110(2) to identify and narrow the issues, such that there may be no need for a judge to hear all of the current 25 grounds of review.

73 The submissions in the section of the applicants' submissions titled "General Propositions Against Remittal to Original Decision [Maker]" from [100] miss the point about the purpose of a remittal under s 110(2A), it must necessarily be made to the magistrate whose reasons are to be clarified, who else could provide such clarification? General propositions about remittals when the purpose is to either deal with a superior court's reasons or to re-make a decision are not helpful.

74           Equally, the submissions under the heading "The Application Fragments The Appeal" cannot be accepted because this is an interlocutory application, the motion for review on the notice is yet to be heard. No review has begun.

75           If the matter is to be remitted, as it should, there should be no need for a further remittal and the magistrate should have an opportunity to clarify his findings as to the basis of criminal responsibility of each defendant in the two separate complaints.

76           For these reasons I would allow the interlocutory application and require the magistrate to provide further and better reasons of his decision without making any new findings of fact, and I make the following orders:

1	The interlocutory application for remittal under s 110(2A) of the Justices Act 1959 be allowed.
2	Magistrate Marron provide further and better reasons for decision in this matter, so as to explain the basis for his findings as to the criminal responsibility of:

(a)	Errol Clayton Stewart, that is whether Mr Stewart was guilty of undertaking the unlawful development as a principal offender, enabler, abettor or instigator; and
(b)	the Stewart Family Tasmanian Investments Pty Ltd, that is whether the company is guilty as having undertaken, permitted or allowed the unlawful development.

3              The Magistrate comply with order 2 no later than 8 weeks from 8 August 2025 - that is, no later than Friday 3 October 2025.

the "no case" submission.

per Magistrate R Marron at [20]-[22].




Resources, the Hon Paul Lennon.

Judges [2024] TASSC 43, and Jones v Bonde (2022) 34 Tas R 397