Warringah Council v Kazi - [2008] NSWCCA 6

New South Wales
Court of Criminal Appeal

CITATION: Warringah Council v Kazi [2008] NSWCCA 6

HEARING DATE(S): 19 November 2007

JUDGMENT DATE:
6 February 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 52; Price J at 53

DECISION: 1. The question in the stated case should be answered "yes."
2. The respondents should pay the appellant's costs of the stated case.

CATCHWORDS: CRIMINAL LAW - case stated - prosecution by public body - application of s 173 and s 174 Criminal Procedure Act 1986 - whether local council entitled to bring prosecution proceedings in its corporate name - use of court attendance notice - requirement to obtain registrar's signature prior to commencing private prosecution proceedings - meaning of "public officer"

LEGISLATION CITED: Food Act 2003
Food Standards Code
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Criminal Procedure Regulation 2005
Local Government Act 1993
Local Court (Criminal and Applications Procedures) Rule 2003
Environmental Planning and Assessment Act 1979

CATEGORY: Principal judgment

CASES CITED: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
Corporate Affairs Commission v Bain (1991) 55 A Crim R 73
Gardner v R [2003] NSWCCA 199
Garrett v Freeman (2006) 147 LGERA 96; [2006] NSWCCA 278
Knaggs v Director of Public Prosecutions [2007] NSWCA 83
Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394
Potier v Huber (2004) 148 A Crim R 399
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales & Anor [2007] NSWCA 128
R v Janceski (2005) 64 NSWLR 10
Sasterawan v Morris [2007] NSWCCA 185
Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441

PARTIES: Warringah Council (Appellant)
Shamsul Kazi (1st Respondent)
Kazi Mohammed Osman Goni (2nd Respondent)

FILE NUMBER(S): CCA 1107/2007

COUNSEL: B Walker SC/T G Howard (Appellant)
M Buscombe/S J Buchen (Respondents)

SOLICITORS: Matthews Folbigg (Appellant)
Jack Rigg (Respondents)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/21/0485
06/21/0486

LOWER COURT JUDICIAL OFFICER: Cogswell DCJ

LOWER COURT DATE OF DECISION: 30 March 2007

1107/2007

McCLELLAN CJ at CL
HALL J
PRICE J
WEDNESDAY 6 FEBRUARY 2008

WARRINGAH COUNCIL v KAZI & ANOR

Judgment

1 McCLELLAN CJ at CL: The respondents were convicted in the Local Court of 26 offences against s 21(1) of the Food Act 2003 for failing to comply with provisions of the Food Standards Code in respect of the operation of a restaurant. Following their conviction they appealed to the District Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001. The appeals were upheld.

2 The essential finding of the judge on appeal was that the appellant had failed to enliven the jurisdiction of the Local Court by purporting to commence the proceedings in its corporate name, without first obtaining the signature of the registrar of the Local Court pursuant to s 174 of the Criminal Procedure Act 1986 (“the Act”). The appellant asked the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2008] NSWCCA 6
Decision Date: 6 February 2008

CaseChat Overview and Summary

Warringah Council brought an application against Kazi in the Supreme Court, seeking to prosecute him for breaches of local laws. The council, as the public body, aimed to enforce compliance with municipal regulations. The primary legal issue before the court was whether the council had the authority to initiate prosecution proceedings in its corporate name. Additionally, the court had to determine the proper application of sections 173 and 174 of the Criminal Procedure Act 1986 regarding the use of a court attendance notice and the necessity of obtaining a registrar's signature before starting private prosecution proceedings. A further matter was the definition of "public officer" as it pertained to the council's capacity to prosecute.

The court examined the statutory framework and relevant case law to address these issues. It found that the council, as a public body, had the right to prosecute in its corporate name under the relevant legislation. The court clarified that the term "public officer" included the council, allowing it to use the prescribed court attendance notice without needing a registrar's signature. This interpretation aligned with the legislative intent to streamline the prosecution process for public bodies. The court ruled in favour of the council, confirming its authority to proceed with the prosecution as a corporate entity.

Consequently, the court granted the council permission to initiate and carry out the prosecution against Kazi for the alleged breaches of local laws. The decision underscored the council's statutory right to enforce municipal regulations through prosecution proceedings without additional administrative hurdles. The ruling clarified the application of statutory provisions and reinforced the council's role as an enforcement agent in maintaining compliance with local laws. The orders made by the court permitted the council to proceed with the prosecution in its corporate capacity, as outlined in the judgment.

Orders