Young v The Corporation of the City of Whyalla - [2009] SASC 314

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
YOUNG v THE CORPORATION OF THE CITY OF WHYALLA
[2009] SASC 314
Judgment of The Honourable Justice White
2 October 2009
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS
Appeal against conviction - appellant convicted by a Magistrate of the offence of depositing goods in a public place contrary to s 235(1) of the Local Government Act 1999 (SA) ("the Act") - the appellant owned a boat which was to be broken up and salvaged - appellant floated the boat to a location owned by the respondent to facilitate the salvage - the tide receded and the boat was beached - subsequent high tides did not reach the same height, and the boat remained beached - respondent issued a letter giving notice that the appellant must remove the boat by a stipulated date - appellant failed to do so - respondent removed boat - respondent sought and was awarded compensation for the cost of removal.
Whether the boat constituted "goods" for the purposes of s 235(1) of the Act - whether the mooring and leaving of the boat in its beached location constituted "depositing" for the purposes of s 235(1) of the Act - whether the appellant had proved that he could not, by the exercise of reasonable care, have avoided the occurrence which gave rise to the charge.
Held: the boat was not "goods" for the purposes of s 235(1) of the Act - appeal allowed.
Local Government Act 1999 (SA), s 4, s 235, s 236, s 237; Local Government Act 1934 (SA), s 748a; Harbors and Navigation Act 1993 (SA), s 47, referred to.
Wirth v Remove All Rubbish Co Pty Ltd (1985) 39 SASR 30, applied.
Vaughan v Biggs [1960] 2 All ER 473; Craddock v Green [1983] RTR 479, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"goods"
"deposited" "deposits"

YOUNG v THE CORPORATION OF THE CITY OF WHYALLA
[2009] SASC 314
Magistrates Appeal

WHITE J: The question on this appeal is whether the appellant was properly convicted of the offence of depositing goods in a public place.
The Corporation of the City of Whyalla (the Corporation) alleged that the appellant had, on 31 August 2007, without its authorisation or permission and in contravention of s 235(1) of the Local Government Act 1999 (SA) (LGA 1999), “deposited” a vessel on rocks forming one edge of the Whyalla Marina (the Marina). A Magistrate found that charge proved. The Magistrate recorded a conviction without penalty, but ordered the appellant to pay the removal costs incurred by the Corporation amounting to $4,925.51.
Section 235 of the LGA 1999 provides:
(1)     A person who, without the council's authorisation or permit—
(a)     deposits rubbish on a public road or public place; or
(b)     deposits goods, materials, earth, stone, gravel, or any other substance on a public road or public place, is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(2)Anything that falls from a vehicle onto a public road or public place is taken, for the purposes of subsection (1), to have been deposited by the person by or on whose behalf the vehicle is operated.
(3)     It is a defence to a charge of an offence against subsection (1) to establish—
(a)     that the act subject to the charge was done by or with the consent of the owner of the land on which the act was done; or
(b)     that the defendant could not, by the exercise of reasonable care, have prevented the occurrence out of which the charge arose.
(4)The court by which a person is convicted of an offence under this section must, on application by a council in whose area the offence was committed, order the convicted person to pay to the council any costs incurred by the council in removing and disposing of anything deposited in contravention of this section.
It can be seen that s 235(4) required the Magistrate, on convicting the appellant, to order him to pay to the Corporation the costs incurred by it in removing and disposing of the vessel.
Factual Circumstances
Most of the facts giving rise to the prosecution and the orders made by the Magistrate were not in issue at the trial. The appellant owned a boat which was called “the Navarino”. It was a large vessel approximately 40 feet in length with a beam of 4 metres and a draft of 1.8 metres. The Navarino was made of concrete and was very heavy (12 tonnes). It had been moored in the Marina at Whyalla for several years. The Marina is owned by the Corporation and the appellant had incurred a liability for mooring fees. In discussions between the appellant and employees of the Corporation, it was agreed that the Navarino would be broken up and that the appellant would use the amounts realised from the salvage to reduce his indebtedness to the Corporation.
The appellant wished first to remove the Navarino’s valuable mast. Because of the mast’s size and weight, its removal required the use of a crane. Getting the Navarino to a place where it would be in close proximity to a land based crane presented some difficulties. It seems to be have been common ground that the appellant could not use an area in, or adjacent to, the Marina, known as the wet slip, nor the Whyalla Yacht Club slip, nor the Marina’s boat ramp. The appellant decided to position the Navarino next to a jetty leading to a floating pontoon.
On the morning of Friday, 31 August 2007 at high tide, the appellant, with the assistance of others, floated the Navarino to that position and moored it. He had arranged a crane to attend to lift the mast. However, it took longer to detach the mast than had been anticipated. The tide receded and the Navarino became beached in its moored position on the rocks at the edge of the Marina.
The appellant then used ropes tied on either side of the Navarino in order to keep it in a vertical position. His intention was to refloat the Navarino at high tide on the next day. Unfortunately, the high tide on the morning of 31 August 2007 had been higher than usual and the subsequent high tides did not attain the same height. The effect was that the Navarino remained grounded.
The appellant then planned to lighten the Navarino to assist in refloating it. However, about four days after the Navarino had first become beached, some vandals cut the securing lines with the effect that the Navarino fell onto one side.
The difficulties in moving the Navarino now became more acute. In its position on its side the Navarino took on some water and it was thought that that should be removed before the Navarino was moved. There were difficulties in organising the pumps to do this. Some of the difficulties arose from the fact that there were only a limited number of hours each day during low tide when the appellant could carry out the necessary work.
During the months of September, October and November 2007 the Navarino suffered from further vandalism. The Corporation became concerned about its position, not least because of safety considerations. It urged the appellant repeatedly to move the Navarino.
On or about 8 November 2007, the appellant arranged a crane to attend to lift the Navarino into the vertical position and, as I understand it, to refloat it. However, when the crane lifted the Navarino, a hole in its side, below the waterline, was revealed. This hole had apparently been caused when the Navarino first fell to its side. It meant that the Navarino could not be refloated.
The Corporation then gave written notice to the appellant requiring him to remove the Navarino by no later than 18 November 2007, and warning that in the event of non-compliance, it would proceed to remove the Navarino itself and bill him for the cost. As the appellant did not remove the Navarino by the stipulated date, the Corporation arranged for a large crane to attend on 10 December 2007. It lifted the Navarino from its position at the edge of the Marina and loaded it onto a truck which then carried it away. The cost to the Corporation was $4,925.51.
The Magistrate’s Reasons
The appellant represented himself at the hearing before the Magistrate, as he did on the appeal. At the trial, he tended to focus on the defence contained in s 235(3)(b), contending that in the circumstances he could not, by the exercise of reasonable care, have prevented the circumstances out of which the charge against him arose. He also contended that the Corporation had acted unreasonably in failing to give him sufficient time to remove the Navarino.
The Magistrate was satisfied that the appellant had “deposited” the Navarino on the rocks at the edge of the Marina, and that he had failed to remove it, even after having been given written notice by the Corporation. It is implicit in the Magistrate’s reasons that she considered that the Navarino was “goods” for the purpose of s 235(1) of the LGA 1999. The Magistrate considered that neither of the defences contained in s 235(3) had been established.
The Magistrate concluded:
In this case the defendant did indeed deposit the vessel on the rocks and thereafter failed to remove it, even as it deteriorated, and was vandalised, and despite notice being served on him by the Council after it became a nuisance. It was clearly deposited within the meaning of the section, although it is not deposition of rubbish or abandonment in the sense that the owner intended to abandon ownership at the time of deposition.
Issues on the Appeal
On the appeal, the appellant repeated the submissions which he had made at trial regarding the defence under s 235(3)(b) and his complaint that the Corporation had acted unreasonably. In addition, he raised for the first time a claim that he had had the “implied” permission of the Corporation to act in the way which he had on 31 August 2007.
It seemed to me that the circumstances disclosed in the evidence also gave rise to an issue as to whether the Navarino was “goods”, and possibly whether it had been “deposited” in the sense that those words (or their cognates) are used in s 235(1). I invited the parties to address those issue as well.
Was the Navarino “Goods”?
The size and weight of the Navarino gives rise to the issue of whether it was “goods” to which s 235(1) applied. As previously noted, the Navarino was approximately 40 feet in length, had a beam of some 4 metres, and weighed 12 tonnes.
In Wirth v Remove All Rubbish Co Pty Ltd,[1] White J considered whether an empty industrial waste bin which was 20 feet long, 8 feet wide and 4 feet high was “goods” for the purposes of s 748a of the Local Government Act 1934 (SA) (LGA 1934). Section 748a is the predecessor provision of s 235 of the LGA 1999.
[1] (1985) 39 SASR 30.
White J noted the incongruity of describing such a large receptacle as goods[2] but ultimately considered that its sheer size should not create a difficulty.[3] His Honour considered that s 748a(1)(b) encompassed three subsets of things: “goods”; “materials”; and “earth, stone, gravel or other substances”. These three subsets were in addition to the subset of “rubbish” to which s 748a(1)(a) referred. Understood in that way it was evident that the section was intended to cover a very wide range of things. White J also noted that in other sections, the LGA 1934 addressed the leaving or abandonment of vehicles on public roads and in public places. The conclusion of White J appears in the following paragraph:
In spite of the incongruity of describing such a large receptacle as “goods”, I have not had to resort to dictionary meanings or the mischief rule in the construction of the section. After considerable reflection, I have reached the conclusion that the stretch or ambit of s 748a(1)(b) is very wide, that that was the intention of the Parliament, and that the word “goods” in par (b) is wide enough to describe the truck-type receptacle in question.[4]
[2] Ibid at 31, 34.
[3] Ibid at 31, 32.
[4] Ibid at 34.
The incongruity to which White J referred in Wirth v Remove All Rubbish is even more stark in the present case. The Navarino was more than twice the size, and many times heavier, than the rubbish bin considered in that case. In addition, it had a mast which appears to have been quite tall. However, it may not be impossible for an object of that size and weight to come within the description of goods. A large shipping container would have similar dimensions, is transportable, and can be readily sold, and so may accordingly be appropriately characterised as goods. This suggests that while the size and weight of the Navarino may be very relevant, it is not a decisive consideration.
I turn to some other considerations. The LGA 1999 has separate provisions concerning the leaving or abandonment of “vehicles” in public places. Section 236(1) makes it an offence to “abandon” a vehicle or farm implement on a public road or public place. Section 237(1) authorises local councils to remove vehicles “left” on a public road or public place or on local government land for not less than 24 hours.
The word “vehicle” is defined in s 4(1) of the LGA 1999 to include motorcycles and bicycles.
Even without the presence of ss 236 and 237, it is unlikely that the word “goods” in s 235(1) should be construed as encompassing vehicles. An evident purpose of s 235 is to ensure that public roads are not obstructed and so remain free to be used by vehicular and pedestrian traffic. The very nature of vehicles is that they will, as an incident of their ordinary usage, be parked or left on public roads or public places. It is not to be supposed that s 235(1)(b) is directed to persons who park a car in the street, or who unload a bicycle from a car and put it on the street. The subsection should be construed so as to avoid conclusions to that effect. Such a result could be achieved by a construction of the word “goods” or, theoretically, by a construction of the word “deposits”. However, it seems more appropriate to regard s 235(1)(b) as not directed to certain kinds of goods at all. This means that the word “goods” in s 235(1)(b) should not be regarded as including vehicles, as public roads are developed to facilitate the use of vehicles, and the presence of vehicles on roads is an ordinary incident of their usage.
Sections 236 and 237 seem to be a recognition that the placement of vehicles on the street is not encompassed by 235(1)(b). Section 236 introduces the different concept of abandonment, ie, a complete relinquishment of possession or control of the vehicle, and s 237 addresses the leaving of a vehicle in the one place for more than a relatively short period. If the Navarino had been a vehicle, the Corporation could have removed it, given notice to the appellant (s 237(3)), and, in the event that he did not meet the costs of removal, sold it in order to recoup those expenses (s 237(4)). The appellant would also have been liable to make good any shortfall (s 237(6)).
Derelict vehicles may be encompassed by s 235(1)(a) as they may be “rubbish” for the purposes of that sub-section.
The Navarino was not a vehicle. Its general characterisation was that of a vessel. Nevertheless, it had some similarities with a vehicle. It was registered; it could move under its own power; and it could be operated only by a licensed person.[5]
[5] Harbors and Navigation Act 1993 (SA) s 47.
As with vehicles, there are a number of ordinary usages of a boat which one would not expect to be the subject of s 235(1)(b). There would be some incongruity in regarding a boat owner who beaches a boat such as a dinghy or recreational fishing boat in order to have a rest, or to pick up or off-load passengers or gear, or who runs it onto a beach in order to retrieve it on a boat trailer, as committing an offence against s 235(1)(b). Just as the parking of a vehicle in the street is an ordinary incident of vehicle usage, so also is the beaching of a boat in the circumstances just mentioned an ordinary incident of boat usage. It is not readily to be supposed that s 235(1)(b) is directed to circumstances of this kind. That suggests that the word “goods” in s 235(1)(b) should not be regarded as encompassing boats.
The LGA 1999 does not contain any counterparts to ss 236 and 237 in relation to vessels, but I do not consider that to be decisive. It does not seem to be appropriate to give an expanded meaning to the word “goods” in s 235(1)(b) in order to overcome what appears otherwise to be a gap in the legislation.
In summary, two considerations lead me to conclude that the Navarino was not “goods” for the purposes of s 235(1)(b). The first is that I do not consider the word “goods” encompasses objects such as vehicles or vessels which will, as an incident of ordinary usage, be placed on public land, and the usage of which will, in many cases, account for the development of the public land in a particular way. Secondly, I regard the sheer size and weight of the Navarino to be a relevant, albeit not decisive, consideration.
Did the Appellant “Deposit” the Navarino?
As noted earlier, the Magistrate was satisfied that the appellant had deposited the Navarino on the rocks of the Marina on 31 August 2007. In my opinion, the Magistrate was correct to do so.
There has been some discussion in the authorities of whether the concept of “depositing” for the purpose of offences like s 235(1) involves only the placing of the object in question in the public place, or requires, in addition, the object then being left in the position in which it was placed. In Vaughan v Biggs[6] the offence required proof (relevantly) that a derelict car had been both deposited and left in a public place. The issue was whether the prosecution had been commenced within the statutory period of limitation. This required an identification of when the offence had been committed. Lord Parker CJ (with whom the other members of the Court agreed) said:
It is quite clear that not only the depositing but also the leaving is necessary, because it was not intended that an offence should be committed if someone deposited litter and immediately cleared it up. Accordingly, although the act constituting the offence consists of throwing down, dropping or otherwise depositing, it is only an offence if it is not removed. The offence is not committed unless both of these things, the depositing and the leaving, occur. Depositing is an act fixed in point of time and not a continuing matter … [7]
It can be seen that the decision in Vaughan v Biggs resulted from the terms of the statutory provision in question, which required both that the object in question be deposited and left.
[6] [1960] 2 All ER 473.
[7] Ibid at 474.
Craddock v Green[8] concerned a statutory provision that a builder’s skip was not to be deposited on a highway without the permission of the highway authority. The defendant had obtained permission for a stipulated period, but failed to remove the skip upon the expiry of that period. He argued that the skip had been deposited on the highway when it was first placed there and, accordingly, that his leaving of the skip in position after the expiry of the permit did not amount to a depositing of it. Griffiths LJ (with whom McCullough J agreed) rejected that submission as he considered that, in context, the word “deposit” extended beyond the putting down, placing or delivering of the skip and included the leaving of the skip in position after the expiry of the permit.
[8] [1983] RTR 479.
It is not necessary to reach a decision about which of these competing views is appropriate in the present case. In my opinion, whatever meaning is given to the word “deposits” the appellant had, in the circumstances of this case, deposited the Navarino on the rocks at the edge of the Marina.

By mooring the Navarino next to the jetty at high tide, the appellant put it in a place where it would inevitably come to rest on the rocks upon the receding of the tide. It was the intervention of the receding tide which was the immediate event which led to the Navarino becoming grounded but it was the appellant who had placed the boat in the position in which that could occur. Because of unusual weather conditions, the high tide on the morning of 31 August 2007 was some half a metre higher than had been predicted. There is, however, no evidence to the effect that the Navarino would not have become grounded if the high tide had been at the expected height, and the various photographs of it lying on the rocks tend to suggest that it would have become grounded in any event. In my opinion, by mooring the Navarino in the place that he did, knowing that there would be tidal movement, it can be said that it was the appellant’s conduct which constituted the depositing of the boat on the edge of the Marina. It was his conduct which amounted to the putting down, or placement of the Navarino in the position in which it came to rest.
Even if the word “deposits” is construed as involving some element of leaving the goods in place after they were initially put down, that condition is satisfied in the present case. The period to be considered is 31 August 2007 itself, as the complaint issued by the Corporation alleged that the offence was committed “on or about 31 August 2007”. While the reasons of the appellant for leaving the boat in position on that day are, in some respects, understandable, the fact of the matter is that the Navarino was left on the rocks for much more than an insignificant period. For these reasons, I consider that the Magistrate’s decision concerning the depositing of the Navarino was correct.
Did the Appellant have the Corporation’s Permission?
On the hearing of the appeal, the appellant submitted that he had implied permission from the Corporation to do what he did on 31 August 2007. As I understood it, the appellant contended that the implied permission arose from a combination of circumstances. Those circumstances comprised his agreement with the Corporation to salvage the mast of the Navarino in order to reduce his liability to it; the fact that the Navarino was in the Marina; and the circumstance that there were no other places to which he could take the Navarino in order that a land based crane could lift the mast.
The Magistrate did not consider this submission as it had not been raised before her.
In my opinion, the submission should not be upheld. The only conduct of the Corporation upon which the appellant relies for the implied permission is its agreement that the salvage from the Navarino be used to reduce the appellant’s indebtedness to it. That agreement says nothing at all about the method which the appellant may adopt in order to effect the salvage. Even if the options open to the appellant for the removal of the mast were limited, it does not follow that the Corporation must thereby have impliedly consented to him adopting the particular method which he did choose.
This ground of appeal fails.
The Defence of Reasonable Care
The appellant submitted that he could not, by the exercise of reasonable care, have prevented “the occurrence” out of which the charge against him arose (s 235(3)(b)).
It was for the appellant to establish this defence. In my opinion, the Magistrate was correct to conclude that he had not done so.
The “occurrence” to which s 235(3)(b) refers is the circumstance in which the depositing of the goods occurs. In the present case that “occurrence” was the events which occurred on 31 August 2007 by which the Navarino became grounded. If an extended meaning of the word “deposits” is adopted, it would be those circumstances together with the subsequent leaving of the Navarino in place for the remainder of the day.
It is plain that the appellant could, with the exercise of reasonable care, have removed the Navarino from its moored position so as to avoid it becoming grounded upon the receding of the high tide. The appellant had deliberately moved the Navarino at high tide. He knew that the tide would recede. All that was required was for him to monitor the movement of the tide and to ensure that the Navarino was moved into deeper water before it did become grounded.
Once the Navarino did become grounded things became more difficult. However, the appellant has not proven that he could not, with reasonable diligence, have removed the Navarino at the second high tide on 31 August 2007. Although the height of the tides did not permit the Navarino to be refloated naturally, it has not been shown that there were no other means by which the Navarino could have been moved in that period. The appellant chose to try to make use of the tides, rather than pursuing other options.
Conclusion
For the reasons given above, I consider that the Navarino was not “goods” to which s 235(1)(b) of the LGA 1999 referred. On this ground alone, the appeal should be upheld. I would dismiss each of the other grounds advanced by the appellant at the hearing.
The appeal is allowed. The conviction of the appellant is set aside. In addition, I set aside the order for compensation made by the Magistrate.