Zhang v Woodgate and Lane Cove Council

[2015] NSWLEC 10

Land and Environment Court

New South Wales

Medium Neutral Citation:	Zhang v Woodgate and Lane Cove Council [2015] NSWLEC 10
Hearing dates:	19 and 20 November 2014
Date of orders:	06 February 2015
Decision date:	06 February 2015
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	(1)  Declare that the notice issued by Mr Woodgate on 29 August 2014 to Mr Ferguson to attend a place to answer questions is invalid. (2)  Order that the respondents pay the applicant’s costs of the proceedings.
Catchwords:	JUDICIAL REVIEW – statutory notice requiring answers to questions – statutory power to give notice only to enable a council to exercise its functions under the Environmental Planning and Assessment Act 1979 (‘EPA Act’) – prosecution for an offence against the EPA Act already commenced against an accused person when notice given – whether statutory power authorised the notice – notice given to a potential witness to enable council to exercise its prosecutorial function in aid of the pending criminal proceedings – prosecutorial function not a function under the EPA Act – notice ultra vires statutory power as not given to enable exercise of function under EPA Act – notice not ultra vires merely because given after a prosecution commenced – notice to potential witness, and not the accused, does not necessarily interfere with administration of justice – whether issue of notice involves a contempt of court – no actual or real risk of interference with administration of justice – no improper advantage to council such as would be contempt of court – whether notice defective – notice not defective in not stating functions of council or that person suspected of having knowledge – notice not defective in identifying authorised person giving notice – notice is defective in not identifying matter in relation to which person required to answer questions – notice declared invalid
Legislation Cited:	Criminal Procedure Act 1986 ss 3(1), 14, 172-174, 246, Div 1 Pt 2 Ch 4 Environmental Planning and Assessment Act 1979 ss 4, 22, 23A, 76A(1)(b), 118A, 118BA, 118N, 121B, 122U, 123, 125(1), 127 Interpretation Act 1987 ss 33, 50(1)(e) Land and Environment Court Act 1979 s 41 Local Government Act 1993 ss 21, 22, 23, 23A, 220(4), 684, 685, 687, Pt 2 Ch 17 Environmental Planning and Assessment Regulations 2000 cl 284(3)(c) Land and Environment Court Rules 2007 r 5.3
Cases Cited:	ASIC v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 D’Anastasi v Environment, Climate Change and Water (NSW) [2011] NSWCA 374; (2011) 81 NSWLR 82 De Greenlaw v National Companies and Securities Commission (1989) 7 ACLC 789 Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 Hammond v The Commonwealth (1982) 152 CLR 188 Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196; (2013) 87 ALJR 1082 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 Sydney Catchment Authority v Bailey [2006] NSWLEC 616; (2006) 149 LGERA 298 The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 Warringah Council v Kazi [2008] NSWCCA 6; (2008) 71 NSWLR 84 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Category:	Principal judgment
Parties:	Mr Jian Wen Zhang (Applicant) Mr Matthew Woodgate (First Respondent) Lane Cove Council (Second Respondent)
Representation:	Counsel: Mr T G Howard SC with Ms P O’Dea (Barrister) (Applicant) Mr A Isaacs (Barrister) (Respondents) Solicitors: Hones La Hood (Applicant) Pikes & Verekers (Respondents)
File Number(s):	40704 of 2014
Publication restriction:	No

Judgment

A statutory notice to require answers is challenged

1. Mr Zhang and his wife are the owners of 8 Haughton Street, Linley Point (‘the land’). Lane Cove Council (‘the Council’) granted development consent DA15/11 on 5 September 2011 to carry out development on the land comprising alterations and additions to the existing dwelling house (‘the consent’). Between 1 October and 1 December 2012, Mr Zhang excavated the land. The Council alleges that he carried out excavation in an area of the land that was not in accordance with the consent, that is to say, he over excavated the land.

2. Mr Woodgate is a building surveyor employed by the Council and a public officer, within the meaning of that term in s 3(1) of the Criminal Procedure Act 1986, authorised under s 14 of the Criminal Procedure Act to commence proceedings for an offence against a person. Mr Woodgate commenced criminal proceedings in the Local Court against Mr Zhang, by issuing and filing a court attendance notice dated March 2014 under s 173 of the Criminal Procedure Act, for an offence against s 125(1) of the Environmental Planning and Assessment Act 1979 (‘the EPA Act’) of carrying out development otherwise than in accordance with a development consent, in contravention of s 76A(1)(b) of the EPA Act.

3. Mr Zhang has pleaded not guilty to the charge. The trial in the Local Court was set originally for three days commencing on 17 September 2014. However, Mr Zhang sought, by notice of motion dated 19 August 2014, the vacation of those hearing dates and an order that the Council provide Mr Zhang with the prosecutor’s brief of evidence. On 26 August 2014, the Local Court ordered, by consent, that the listed hearing dates be vacated and that the Council provide Mr Zhang with its brief of evidence by 10 September 2014.

4. On 29 August 2014, Mr Woodgate issued a written notice under s 118BA of the EPA Act to Mr Richard Ferguson requiring him to attend at the specified place of the Council’s offices at the specified time of 1.00pm on 10 September 2014 to answer questions “about the over excavation of 8 Haughton Street, Linley Point in the Lane Cove Government Area” (‘the Notice’). Mr Ferguson was the sole director of Romeo Computer Aided Designs Pty Limited (‘ROMEOCAD’). ROMEOCAD had prepared two statements of environmental effects in relation to applications for the modification of the consent in December 2011 and December 2012.

5. The Notice was served on Mr Ferguson under cover of a letter dated 29 August 2014 from the Council’s solicitors, Pikes & Verekers, to Mr Ferguson. The letter was as follows:

Dear Sir,

LANE COVE COUNCIL V ZHANG AND DECON CONSTRUCTIONS PTY LTD

8 HAUGHTON STREET, LINLEY POINT

ILLEGAL BUILDING WORKS AND OVER-EXCAVATION – PROSECUTION

Our ref: SNG:BJ:121539

Your ref

In regards to the above matter, please find enclosed by way of service, a notice issued under Part 6 Division 1A of the Environmental Planning and Assessment Act 1979 (NSW) (“the Act”) requiring you to attend Lane Cove Council to answer questions in relation to the over excavation of 8 Haughton Street, Linley Point (“the premises”).

Please note that failure to comply with the enclosed notice is an offence under section 118N of the Act.

Further, please bring with you to the meeting any documents relating to the premises and your relationship with Mr Zhang that will assist you in answering any questions.

If you cannot attend Council offices on the specified date, please contact the undersigned immediately.

Yours faithfully,

6. On 3 September 2014, Mr Zhang’s solicitors wrote to the Council’s solicitors about the Notice issued by Mr Woodgate. Mr Zhang’s solicitors asserted:

Plainly the purpose of this notice is to interrogate Mr Ferguson under compulsion in relation the current criminal proceedings against Mr Zhang. So much is clear from the header of your letter.

7. Mr Zhang’s solicitors claimed that the Notice was a species of contempt of court, an abuse of process and ultra vires and demanded the revocation of the Notice.

8. On 4 September 2014, the Council’s solicitors replied to Mr Zhang’s solicitor’s letter. The Council’s solicitor’s letter was headed “Lane Cove Council v Zhang, 8 Haughton Street, Linley Point, prosecution”. The Council’s solicitor stated:

Although your letter gives no particulars thereof, it asserts that the issuance of a Section 118BA Notice to a prospective witness Mr Ferguson is a contempt of Court, an abuse of process and ultra vires.

With respect, our client does not agree. The issuer of the Notice reasonably suspects Mr Ferguson to have knowledge of matters the subject of this prosecution and the Notice is thus properly issued under Council’s functions under the EPA Act.

The issuance of the Notice is neither unreasonable nor improper. It is in the interests of all parties that this matter be investigated as thoroughly as is reasonably possible. Nor can it be said, in that regard, that the issuance of the Notice is prejudicial to your client.

Council does not propose to withdraw the Notice.

9. On 4 September 2014, Mr Zhang commenced these judicial review proceedings in this Court challenging the validity of the Notice and seeking declaratory and interlocutory and final injunctive relief.

10. On 8 September 2014, Pain J granted an interlocutory injunction restraining Mr Woodgate and the Council from exercising power under s 118BA of the EPA Act in furtherance of the Notice, pending final determination of these proceedings.

11. On or about 10 September 2014, the Council provided its brief of evidence to Mr Zhang, as directed by the Local Court.

12. On 3 October 2014, the criminal proceedings were listed by the Local Court for a three day hearing commencing on 4 February 2015.

13. The judicial review proceedings in this Court were heard on 19 and 20 November 2014.

The statutory notice in question

14. The Notice was in the following terms:

LANE COVE COUNCIL

NOTICE TO ATTEND A PLACE TO ANSWER QUESTIONS

Pursuant to s 118BA of the

Environmental Planning and Assessment Act 1979 (NSW)

29 August 2014

Richard Ferguson

Level 3, 19-174 Willoughby Road

Crows Nest

NSW 2065

Name of authorised officer:   Matthew Woodgate

PARTICULARS

1.   Matthew Woodgate, Principal Building Surveyor, being an Authorised Officer with responsible authority under the Environmental Planning and Assessment Act 1979 (NSW) (“the Act”) and for the purpose of Part 6, Division 1A of the Act hereby gives you notice.

Specified time and place of attendance:

2. Pursuant to s 118BA (3) & (4) of the Act, Council requires Richard Ferguson of level 3, 19-174 Willoughby Road, Crows Nest to attend at the following specified place at the specified time and date to answer questions about the over excavation of 8 Haughton Street, Linley Point in the Lane Cove Government Area.

Place: Lane Cove Council Civic Centre, 48 Longueville Rd, Lane Cove.

Time: 10 September 2014 at 1:00pm. Contact the writer on 9911 3555, business hours, to confirm.

Please bring suitable personal identification to the interview

Section 118BA of the Act states:

[the section is quoted]

Failure to comply with this notice

3. Take further note that it is an offence pursuant to s 118N of the Act to fail to comply with this notice which carries a maximum penalty of $2,200.00 upon conviction.

Section 122U of the Act also applies and states:

[the section is quoted]

Yours faithfully

Matthew Woodgate, Principal Building Surveyor

Duly authorised under Part 6, Division 1A of the Environmental Planning and Assessment Act 1979 (NSW).

The statutory power to require answers

15. The Notice requiring Mr Ferguson to answer questions was purportedly given pursuant to the power in s 118BA of the EPA Act. Section 118BA provides, so far as is relevant to the giving of the Notice, as follows:

(1)   A person authorised to enter premises under this Division (an authorised person) may require an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act to answer questions in relation to those matters.

(2)   An authorised person may require a corporation to nominate a director or officer of the corporation who is authorised to represent the corporation for the purposes of answering questions under this section.

(3)   An authorised person may, by notice in writing, require a person referred to in subsection (1) to attend at a specified place and time to answer questions under this section if attendance at that place is reasonably required in order that the questions can be properly put and answered.

(4)   The place and time at which a person may be required to attend under subsection (3) is to be:

(a)   a place and time nominated by the person, or

(b)   if the place and time nominated is not reasonable in the circumstances or a place and time is not nominated by the person, a place and time nominated by the authorised person that is reasonable in the circumstances.

16. The reference to “a person authorised to enter premises under this Division” is a reference to a person who the Council has authorised, in writing, to enter any premises under s 118A(1) of the EPA Act (which is in the same Division 1A of Pt 6 of the EPA Act as s 118BA). The Council had, pursuant to this power, authorised Mr Woodgate to enter any premises. Hence, Mr Woodgate was an authorised person who could exercise the power under s 118BA(1) to require a person to answer questions.

17. It is an offence for a person to fail to comply with a notice given or requirement made under s 118BA, or to answer any question asked, by an authorised person under Div 1A, without reasonable excuse (s 118N(1)(a) of the EPA Act). A person is not excused from a requirement to answer a question on the ground that the answer might incriminate the person or make the person liable to a penalty (s 122U(2) applied to Div 1A by s 118N(2) of the EPA Act).

18. However, any answer given by a natural person in compliance with the notice given or requirement made under s 118BA is not admissible in evidence against the person in criminal proceedings if the person objected at the time of doing so on the ground that it might incriminate the person (s 122U(3) applied to Div 1A by s 118N(2) of the EPA Act). Nevertheless, there is no derivative use immunity: further information obtained as a result of an answer given in compliance with a requirement under Div 1A is not inadmissible on the ground that the answer had to be given or that the answer might incriminate the person (s 122U(5) applied to Div 1A by s 118N(2) of the EPA Act).

The grounds of challenge to the Notice

19. By his further amended summons filed 19 November 2014, Mr Zhang claimed the Notice was invalid on three grounds:

1. The statutory construction ground: Section 118BA of the EPA Act on its proper construction did not empower Mr Woodgate to compel Mr Ferguson, or any other person, to attend at a place and time to answer questions in relation to the subject matter of the current criminal proceedings being prosecuted by the Council against Mr Zhang. That power, if it were otherwise properly exercised, could no longer be validly exercised when the criminal proceedings in the Local Court were commenced;

2. The contempt of court ground: It is a species of contempt of court for Mr Woodgate and the Council to seek to exercise the power under s 118BA of the EPA Act for the sole or dominant purpose of obtaining evidence to be used in the Local Court proceedings and in such a way as to obtain an advantage which could not be obtained under the procedural rules of the Local Court.

3. The defective notice ground: The Notice fails to identify the relevant conditions precedent to the proper exercise of the power under s 118BA of the EPA Act, in that the notice:

1. fails to identify to the addressee the functions of the Council under the EPA Act, the exercise of which reasonably requires the provision of information from the addressee;

2. fails to identify to the addressee any matter within the functions of the Council under the EPA Act in respect of which information from the addressee was reasonably required;

3. fails to identify to the addressee that the addressee is suspected on reasonable grounds to have knowledge of any such matters; and

4. does not set out that the “authorised person” within the meaning of s 118BA of the EPA Act required the recipient of the Notice (Mr Ferguson) to attend at a specified place and time to answer questions under that section, but rather states that “Council requires Richard Ferguson to attend [at the specified place and time]” to answer questions, in circumstances where the Council is not an “authorised person” within the meaning of s 118BA of the EPA Act.

The statutory construction ground

Mr Zhang’s submissions

20. Mr Zhang submitted that s 118BA confers power to require a person to answer questions only for the purpose of obtaining information to enable the Council to perform regulatory or administrative functions under the EPA Act, such as determining whether criminal proceedings for an offence against the EPA Act should be instituted, not for the purpose of obtaining information to enable the Council to exercise prosecutorial functions after criminal proceedings have already been commenced by the Council. The distinction is between acting in aid of an executive function (before proceedings are commenced) and acting in aid of a judicial function (after proceedings are commenced). Section 118BA empowers the former but not the latter.

21. Mr Zhang submitted that s 118BA should be construed to have this meaning and effect for two sets of reasons: first, as a matter of statutory interpretation of the words of s 118BA and, secondly, s 118BA should be construed so as not to interfere with the accusatorial system of criminal justice and the fundamental rights of an accused.

22. First, Mr Zhang submitted that the express words of s 118BA(1) limit the exercise of the power to issue a written notice requiring a person to answer questions to enabling the Council to “exercise its functions under this Act”. “This Act” is the EPA Act. Section 118BA(1) empowers an authorised person to require certain kinds of persons to answer questions in relation to certain kinds of matters. The matters in relation to which questions can be asked are “matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act”. The purpose of asking questions in relation to these matters is to obtain information to enable the Council to exercise its functions under the EPA Act. The Council cannot ask questions to obtain information to enable the Council to exercise its functions under any Act other than the EPA Act.

23. Mr Zhang submitted that the functions of a council under the EPA Act are regulatory and administrative functions, such as investigating contraventions of the EPA Act and determining whether proceedings should be instituted to adjudicate and punish contraventions, but do not include enforcement functions, such as the prosecution of offences against the EPA Act. Mr Zhang submitted that the function of prosecuting for an offence against the EPA Act is not conferred on the Council by the EPA Act, but rather under the Criminal Procedure Act and the Local Government Act 1993.

24. Hence, Mr Zhang submitted, an authorised person has no power under s 118BA(1) to require a person to answer questions in relation to a matter in respect of which information is reasonably required to enable the Council to exercise its function to prosecute for an offence against the EPA Act (because that is not a function under the EPA Act).

25. Mr Zhang submitted that the right to institute criminal proceedings and the manner in which criminal proceedings are to be instituted are conferred and prescribed by the Criminal Procedure Act and the Local Government Act.

20. Section 14 of the Criminal Procedure Act confers the right to institute a prosecution for an offence, providing:

A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons.

27. Mr Zhang submitted that the EPA Act does not expressly confer a right to institute proceedings on any particular person, including on a council. Section 127(1) of the EPA Act provides:

Proceedings for an offence against this Act may be taken before the Local Court or before the Court [the Land and Environment Court] in its summary jurisdiction.

28. This provision specifies the courts in which proceedings for an offence against the EPA Act may be brought but is silent on who may institute those proceedings. Consequently, the exception in the tail of s 14 is inapplicable. Hence, the right to institute a prosecution for an offence against the EPA Act is conferred by the common informer provision in s 14 of the Criminal Procedure Act: Sydney Catchment Authority v Bailey [2006] NSWLEC 616; (2006) 149 LGERA 298 at [10].

29. Sections 172-174 of the Criminal Procedure Act specify how a person who has a right to institute proceedings in respect of an offence is to commence the proceedings for summary offences in the Local Court. Section 172(1) specifies that proceedings for an offence are to be commenced in the Local Court by the issue and filing of a court attendance notice in accordance with Div 1 of Pt 2 of Ch 4 of the Criminal Procedure Act. Section 173 deals with the commencement of proceedings by a police officer or public officer, while s 174 deals with the commencement of a private prosecution. The difference between the two provisions is that a police officer or public officer may simply issue and file the court attendance notice, while a person other than a police officer or public officer needs to first approach the registrar of the Local Court to have the court attendance notice signed by the registrar before issuing and filing the court attendance notice.

30. Where the proceedings are brought by a council, the proceedings may be commenced either in the name of an employee of the council who is authorised to commence proceedings (s 173 of the Criminal Procedure Act and s 684(b) of the Local Government Act) or in the name of the council, if it is not required to be made on oath (s 684(a) of the Local Government Act): see Warringah Council v Kazi [2008] NSWCCA 6; (2008) 71 NSWLR 84 at [25] – [30].

31. Mr Zhang noted, however, that s 14 of the Criminal Procedure Act only confers a right, not a power; s 14 assumes that the person to whom it refers has power or capacity to institute the prosecution: Sydney Catchment Authority v Bailey at [9]. The power or capacity of a council to institute proceedings for an offence must be found elsewhere.

32. Mr Zhang submitted that the EPA Act does not confer the power to prosecute for an offence against the EPA Act. That was confirmed by Sydney Catchment Authority v Bailey. There, the Authority prosecuted the defendant for an offence against the EPA Act of carrying out development without development consent. The defendant sought the summary dismissal of the prosecution, alleging that the Authority had no power to bring the proceedings. Biscoe J held that the Authority did have power to institute the prosecution, although not under the EPA Act, but rather under s 50(1)(e) of the Interpretation Act 1987 because the prosecution was necessary for, or incidental to, the exercise of the Authority’s functions under the Sydney Water Catchment Management Act 1998 (‘SWCM Act’) and s 17(1) of SWCM Act because the prosecution was necessary or convenient to carry out the Authority’s concurrence role.

33. Mr Zhang submitted that the power (which is a function) of a council to exercise the right to institute a prosecution for an offence under any Act is conferred by the Local Government Act.

34. Section 21 of the Local Government Act provides for the functions of a council under the Local Government Act:

A council has the functions conferred or imposed on it by or under this Act.

35. Section 22 recognises that the Council also has other functions under other Acts:

A council has the functions conferred or imposed on it by or under any other Act or law.

36. The Note to s 22 gives the example of s 50(1) of the Interpretation Act, which provides in part that a statutory corporation “(c) may take proceedings and be proceeded against in its corporate name” and “(e) may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions”. That provision applies to and in respect of a council (see s 220(4) of the Local Government Act).

37. Section 50(1)(c) of the Interpretation Act is not a source of power to institute a prosecution for an offence. Rather, it is a general provision aimed at the title under which proceedings by a corporation shall be commenced or suffered: Proprietors of Strata Plan No 6522 v Furney [1976] 1 NSWLR 412 at 414; Sydney Catchment Authority v Bailey at [30]. Section 50(1)(e) of the Interpretation Act, however, does confer power to institute a prosecution for an offence that is necessary for, or incidental to, the exercise of a corporation’s functions elsewhere granted: Sydney Catchment Authority v Bailey at [53].

38. The Note to s 22 also gives the example of the EPA Act that confers on a council the functions of “environmental planning”.

39. Section 23 of the Local Government Act provides for supplementary, incidental and consequential functions to the functions conferred by the Local Government Act or any other Act (including the EPA Act):

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

40. The Note after s 23A of the Local Government Act contains a table summarising a council’s functions under the Local Government Act and other Acts. The functions specified under the Local Government Act include “enforcement functions”, examples of which are stated to be “proceedings for breaches of the Act” and “prosecution of offences”. The functions under other Acts that are specified are “various functions” and cross reference is made to the Note to s 22 (to which reference has been earlier made).

41. Mr Zhang relies on this Note after s 23A of the Local Government Act as confirming that the function of prosecution of offences is conferred under the Local Government Act.

42. Mr Zhang then relies on the provisions of Pt 2 of Ch 17 of the Local Government Act concerning proceedings by a council or its employees. Section 684 of the Local Government Act provides that:

In any proceedings for an offence, the information may be laid:

(a)   in the name of the council, if not required to be made on oath, or

(b)   in any case by the general manager or by any other employee of the council appointed generally or in respect of any special proceedings or by any police officer …

43. This provision applies to proceedings for an offence under any Act, not only the Local Government Act. Hence, it was applied to uphold the validity of a prosecution for an offence against s 21(1) of the Food Act 2003, commenced by issuing and filing a court attendance notice in the name of the council rather than the name of an employee of the council who was a public officer authorised to commence proceedings for an offence: Warringah Council v Kazi.

44. Section 687 of the Local Government Act provides:

In proceedings in the Local Court, the general manager or any other employee of the council appointed in writing by the general manager may:

(a)   represent the council in all respects as though the general manager or other employee were the party concerned, and

(b)   institute and carry on any proceedings which the council is authorised to institute and carry on under this Act.

45. Mr Zhang submitted that this section, particularly para (b), confirms that the institution and carrying on of criminal proceedings in the Local Court is authorised under and is a function of a council under the Local Government Act.

46. Secondly, Mr Zhang submitted that there should be read into the statutory provision of s 118BA the limitation that the power cannot be used after the commencement of a prosecution for an offence against the EPA Act. The reason for doing so is that, in the absence of clear legislative indication to the contrary, a statutory power should not be read as authorising the doing of any act that amounts to a contempt of court, by being an unlawful interference with the administration of justice, a departure from the general system of law, or an interference with the accusatorial system of criminal justice, including an accused’s right of silence. Mr Zhang relied on various decisions dealing with the reading down of statutory powers authorising investigation and collection of evidence where exercise of those powers would unlawfully interfere with the administration of justice, including The Melbourne Steamship Company Ltd v Moorehead (1912) 15 CLR 333 at 341, 346; Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 at 185, 189; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460 at 467-468, 473; Environment Protection Authority v Caltex Refining Co Pty Limited (1993) 178 CLR 477 at 506, 516-517, 537, 557-559; NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252; (2008) 72 NSWLR 456 at [11] and [15] (quoting in each the findings of the trial judge at [15] and [90] of the trial judge’s judgment), [61], [74], [105], [115]-[117], [123], [129], [133]-[136]; X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 at [37], [38], [87], [124], [125].

47. Mr Zhang submitted that such reading down of a statutory provision involves application of the principle of legality. The issuing of a notice under s 118BA to a potential witness for the purpose of obtaining evidence in aid of pending criminal proceedings would interfere with the accusatorial nature of the criminal justice system and depart from the general system of law, namely a departure from the long established judicial procedures that apply in respect of witnesses in criminal proceedings.

48. Mr Zhang submitted that the curial processes that apply to criminal proceedings do not permit compulsory interrogation of a person prior to that person being called to give evidence in the proceedings. Under the curial processes, a potential witness, such as Mr Ferguson, could not be compelled to attend an interrogation, conducted in private, and without the procedural safeguards that the curial processes afford to the accused. Mr Zhang submitted that s 118BA should not be construed so as to permit an extra-curial and parallel inquisitorial investigation into the matter the subject of the pending criminal proceedings.

The Council’s submissions

49. The Council disputed both of the constructions of s 118BA put forward by Mr Zhang. The Council submitted that the prosecution of an offence against the EPA Act is a function under the EPA Act. The Council submitted that the construction of the word “functions” in s 118BA that should be preferred is one that promotes the purpose or object underlying the EPA Act (see s 33 of the Interpretation Act). Section 4 of the EPA Act defines “functions” to include “powers, authorities and duties”.

50. Section 125(1) of the EPA Act is the offence creating provision and s 127 of the EPA Act provides the power for bringing criminal proceedings. Whilst s 127 of the EPA Act does not specify who can exercise the power to bring proceedings, it does not exclude a council or an authorised employee of a council from doing so.

51. The Council submitted that Mr Zhang’s argument that the issue of a court attendance notice commencing the proceedings by operation of the Criminal Procedure Act deprives the Council of a function to investigate and prosecute criminal offences under the EPA Act is to conflate the separate issues of procedure and power. The Criminal Procedure Act provides the mechanism for a council to institute proceedings for an offence against the EPA Act. Sections 125 and 127 of the EPA Act provide the power (and thus the function) as the offence and criminal proceedings creating provisions.

52. The Council submitted that if ss 125 and 127 of the EPA Act were repealed and did not exist in the EPA Act, there would be no offence creating provision or criminal proceedings provision by which any person including a council would have the power to take proceedings for an offence against the EPA Act.

53. The Council submitted that the silence in ss 125 and 127 of the EPA Act as to who may prosecute offences against the EPA Act does not mean that the exercise of the power under those provisions is not a function of a council under the Act. Where an offence against the EPA Act occurs in relation to matters that involve a council, the investigation and prosecution of those offences has a reasonable connection with and is incidental to its functions: see Sydney Catchment Authority v Bailey at [53].

54. The Council submitted that s 127A of the EPA Act provides confirmation that the EPA Act does confer the function of prosecuting offences against the EPA Act. Section 127A provides:

(1)   An authorised person may serve a penalty notice on a person if it appears to the authorised person that the person has committed an offence under this Act or the regulations, being an offence prescribed by the regulations.

(2)   A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person may pay, within the time and to the person specified in the notice, the amount of penalty prescribed by the regulations for the offence if dealt with under this section.

55. An authorised person for the purpose of s 127A of the EPA Act is defined to include, pursuant to cl 284(3)(c) of the Environmental Planning and Assessment Regulation 2000, a council employee. Section 127A of the EPA Act provides as an express function of council officers the investigation and issuing of penalty notices for offences against the Act or regulations.

56. The Council submitted that it would be incongruous if a council had the function of criminally enforcing the EPA Act by means of serving a penalty notice if it appears that a person has committed an offence against the EPA Act but not have the function of criminally enforcing the EPA Act by means of instituting a prosecution for an offence against the EPA Act.

57. In conclusion, the Council submitted that the construction of the words “functions” in s 118BA of the EPA Act that is to be preferred includes a function that councils may prosecute for offences against the Act, or, in the alternative, that it is a function that is “necessary for”, or “incidental to” the exercise of its functions under the Act (within s 50(1)(e) of the Interpretation Act).

58. The Council also submitted that it should not be assumed that the Notice was issued to Mr Ferguson to answer questions to obtain information to enable the Council to exercise its prosecutorial function in aid of the pending criminal proceedings against Mr Zhang. The Council submitted that the notice might have been issued simply to obtain information about the matter of the over excavation at the land to enable the Council to exercise any of its functions under the EPA Act other than the function of prosecuting for an offence against the EPA Act. The Council noted that Mr Ferguson has not provided any information to the Council in relation to the matter the subject of the Notice (the over excavation of the land). What information Mr Ferguson might provide in relation to those matters is unknown. The Council submitted that the fact that it is unknown what Mr Ferguson might say supports the argument that the Council is permitted to issue the Notice in accordance with its local enforcement powers (in Div 1A of Part 6 of the EPA Act).

59. The Council submitted that it exercises a range of functions under the EPA Act and may conduct investigations to assist it in exercising any of those functions. The information gathered as a result of the Notice to Mr Ferguson may lead to the issuing of orders under Div 2A of Pt 6, such as under s 121B(1)(a) of the EPA Act, or proof of a breach of the EPA Act justifying commencement of civil enforcement proceedings under s 123 in Div 3 of Pt 6 of the EPA Act to remedy or restrain the breach, or the prosecution of a number of people (other than Mr Zhang) under Div 4 of Pt 6 for an offence under the EPA Act.

60. The Council submitted that Mr Zhang’s submission that the power under s 118BA is exhausted once criminal proceedings have been commenced against one person is not correct. It would mean that where criminal proceedings are underway against one person for an offence against the EPA Act, a notice under s 118BA requiring the answering of questions in relation to a matter concerning a council’s functions cannot be issued to any other person, even though that other person is not the subject of pending criminal proceedings. The Council submitted that that cannot have been the legislature’s intention: see ASIC v Elm Financial Services Pty Ltd [2004] NSWSC 859; (2004) 186 FLR 295 at [59]; De Greenlaw v National Companies and Securities Commission (1989) 7 ACLC 789 at 793.

61. The Council also rejected Mr Zhang’s second statutory construction argument that s 118BA should be read down so as to prevent an interference with the administration of justice and the accusatorial system of criminal justice, including an accused’s right to silence. The Council submitted that the principle of legality is applicable to protect an accused, once criminal proceedings have been commenced against the accused, but not persons other than the accused. Hence, s 118BA is to be construed so as to exclude the power to issue a notice to the defendant the subject of pending criminal proceedings, but not some other person: see Environment Protection Authority v Caltex Refining Co Pty Limited at 516-517.

62. The Council submitted that the defendant and other persons stand in different positions. The general system of law or the accusatorial system of criminal justice extends specific protections to a defendant to pending criminal proceedings that are not extended to other persons: X7 v Australian Crime Commission at [124]. The protections that are extended to a defendant are designed to ensure that the individual is the subject of a trial conducted in accordance with the accusatorial process: X7 v Australian Crime Commission at [124]. A person who is not the subject of a charge does not have the benefit of the same protections that are extended to a defendant: ASIC v Elm Financial Services at [58], [59]; NSW Food Authority v Nutricia Australia Pty Ltd at [92]; De Greenlaw v National Companies and Securities Commission at 793.

63. The Council submitted that Mr Zhang’s submission that The Melbourne Steamship Co Ltd v Moorehead stands for the proposition that a third party cannot be the subject of a notice to answer questions does not have regard to the difference in terms and purpose of s 15B of the Australian Industries Preservation Act 1906-1930 (Cth), the legislation pursuant to which the notice in Melbourne Steamship Co Ltd was issued, compared to s 118BA of the EPA Act, a point noted in NSW Food Authority v Nutricia Australia Pty Ltd at [74] and ASIC v Elm Financial Services at [58], [59].

Finding upholding statutory construction ground

64. I consider that there is force in Mr Zhang’s first statutory construction argument that the Notice is ultra vires because it was issued in aid of the pending criminal proceedings against Mr Zhang to enable the Council to exercise its function to prosecute for the offence against the EPA Act, but that function is not a function of the Council under the EPA Act.

64. Section 125 of the EPA Act creates the offences for contraventions of the EPA Act (an offence against the Act: s 125(1)) or the regulations (an offence against the regulations: s 125(2)). Section 127 of the EPA Act specifies the courts in which proceedings for an offence against s 125 can be taken, being the Local Court and the Land and Environment Court in its summary jurisdiction for proceedings for an offence against the EPA Act (s 127(1)) and the Local Court for an offence against the regulations (s 127(2)). But neither section confers a right or a power on any person (including a council) to institute proceedings for an offence against the EPA Act or an offence against the regulations. The right and the power of a council to institute proceedings for an offence against the EPA Act or the regulations must be found elsewhere.

65. The right of a council to institute a prosecution for an offence against the EPA Act or the regulations is to be found in s 14 of the Criminal Procedure Act. The power of a council to institute proceedings for an offence under any Act is in the Local Government Act, being conferred either directly by ss 21, 684 and 687 of the Local Government Act or indirectly because the power is supplemental or incidental to, or consequential on, the exercise of the functions conferred on a council by or under the Local Government Act or any other Act including the EPA Act (see s 23 of the Local Government Act) or because it is necessary for, or incidental to, the exercise of a council’s functions under the Local Government Act or any other Act including the EPA Act (s 50(1)(e) of the Interpretation Act, which power is applied by s 22 of the Local Government Act).

66. The manner in which a council is to commence proceedings for a summary offence against the EPA Act or the regulations in the Local Court is specified by ss 172 and 173 of the Criminal Procedure Act, namely by a public officer issuing and filing a court attendance notice in the Local Court. The manner in which a council is to commence proceedings for an offence against the EPA Act in the Land and Environment Court in its summary jurisdiction is by summons claiming an order under s 246 of the Criminal Procedure Act in respect of the offence (s 41 of the Land and Environment Act 1979 and r 5.3 of the Land and Environment Court Rules 2007).

67. The name in which the council may commence proceedings for an offence can be the name of an employee of the council who is a public officer authorised under s 14 of the Criminal Procedure Act or the Local Government Act to commence proceedings for an offence (s 173 of the Criminal Procedure Act and s 684(b) of the Local Government Act) or the council itself (s 684(a) of the Local Government Act).

68. The upshot is that the function (the power) of a council to prosecute for an offence against the EPA Act or the regulations is not conferred by the EPA Act but rather by the Local Government Act. The consequence is that the power under s 118BA of the EPA Act cannot be used to issue a notice to obtain information to enable a council to exercise its function to prosecute for an offence against the EPA Act because that function is not a function under the EPA Act.

69. In the case of the Notice issued by Mr Woodgate, the evidence establishes that it was issued to require Mr Ferguson to answer questions in relation to the matter the subject of, and in aid of, the pending criminal proceedings in the Local Court against Mr Zhang. That is to say, the Notice was issued to obtain information to enable the Council to exercise its function to prosecute for the offence against the EPA Act. That purpose is plain from the evidence of the timing and circumstances of the issue of the Notice; the express reference to the pending criminal proceedings in the heading of the covering letter serving the Notice; and the heading and statements of the Council’s solicitors in their letter responding to Mr Zhang’s solicitors’ demand that the Notice be revoked as being in contempt of court, an abuse of process and ultra vires. The Council speculated in submissions that the Notice might have been issued for some other purpose, such as to investigate whether to exercise other enforcement functions of the Council, such as issuing an order under s 121B of the EPA Act. However, in the face of the evidence that the Notice was issued in aid of the pending criminal proceedings against Mr Zhang, “it is useless to speculate on what might have been”: The Melbourne Steamship Co Ltd v Moorehead at 346 and see also 342-343.

70. In the circumstances, therefore, the Council acted ultra vires the power in s 118BA by issuing the Notice requiring Mr Ferguson to answer questions in aid of the pending criminal proceedings against Mr Zhang. The Notice should therefore be declared invalid on this ground.

71. I do not agree, however, with Mr Zhang’s second statutory construction argument that the power in s 118BA should be read down so as to prevent the issue of a notice requiring any person to answer questions after proceedings for an offence have been commenced. That is too sweeping a proposition.

72. It is no doubt correct to say that a statutory power to require a person to answer questions, such as in s 118BA of the EPA Act, should be read down so as not to be able to be used, after criminal proceedings have been commenced against an accused, to require the accused to answer questions in relation to matters the subject of the pending criminal proceedings.

73. It is a principle of statutory construction that a “statute expressed in general terms should not be construed so as to authorize the doing of any act which amounts to a contempt of court”: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission at 473; Lee v NSW Crime Commission [2013] HCA 39; (2013) 251 CLR 196; (2013) 87 ALJR 1082 at [319]. The expression “contempt of court” covers “the various ways in which words or conduct unlawfully interfere with the administration of justice”: Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707 cited in NSW Food Authority v Nutricia Australia Pty Ltd at [58]; Environment Protection Authority v Caltex Refining Co Pty Limited at 558.

74. An extra-curial inquisitorial investigation, enabled by the issue of a notice compelling an accused to answer questions, concerning the involvement of the accused in the matters which form the basis of the criminal proceedings against the accused constitutes an improper interference with the due administration of justice in the proceedings against the accused and a contempt of court: Hammond v The Commonwealth (1982) 152 CLR 188 at 206; Brambles Holdings Ltd v Trade Practices Commission (No 2) at 194-195; Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission at 467-468; NSW Food Authority v Nutricia Australia Pty Ltd at [57], [58]; Lee v NSW Crime Commission at [206], [213]. One way in which it interferes is by prejudicing the accused in his or her defence: Hammond v The Commonwealth at 198; Lee v NSW Crime Commission at [211].

75. The reason why a restrictive construction is given to a statute creating such a power is that the power to compel an accused to answer questions in relation to facts relating to the offence with which the accused stands charge is wholly inconsistent with the rights of the accused under the accusatorial system of justice, including an accused’s right to silence: Environment Protection Authority v Caltex Refining CoPty Limited at 516-517. The right to silence is “a convenient description of a collection of principles and rules” including:

The right of any person to refuse to answer any question except under legal compulsion; the privilege of any person to refuse to answer any question at any time on the ground of self-incrimination; the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played; and the right of a person charged with a criminal offence to a fair trial, ‘more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial’: Lee v NSW Crime Commission at [318].

77. The statute is read down to protect these rights of the accused and interference with the due administration of criminal justice.

78. However, these reasons for reading down a statutory power to compel answers to questions are not as readily applicable to a person other than an accused. The issue of a notice to answer questions to a person who is not charged with an offence cannot interfere with the rights of that person under the accusatorial system of criminal justice, as the person is not accused of committing any offence.

79. Mr Zhang submitted, however, that a notice requiring a person who might be a potential witness in criminal proceedings against an accused to answer questions in an extra-curial investigation would interfere with the accused right’s under the accusatorial system of criminal justice. It is difficult to identify with any precision what rights (or even privileges) of an accused are interfered with, or otherwise how there is an improper interference with the due administration of justice in the proceedings against the accused, by a person who is not a witness in the proceedings being required to answer questions in the extra-curial inquiry. The accused has no right to prevent a prosecutor from investigating and inviting any person to answer questions about matters involved in criminal proceedings. The accused may well hope that a person who has knowledge of such matters might decline the prosecutor’s invitation to answer questions. But if the person accepts the invitation and voluntarily answers questions providing information about the matters, the accused has no right to prevent that occurring. Such an inquiry would be extra-curial, in private and in the absence of the accused, and without the procedural safeguards for the accused that curial processes at trial would afford.

80. The giving of a notice under s 118BA of the EPA Act compelling the person to answer questions, rather than merely inviting the person to answer questions, does change the basis upon which the questioning is done. The person will be bound, on pain of punishment, to answer the questions. A natural person may not refuse to answer the questions on the ground that the answers might incriminate the person. However, on objection on the ground of self-incrimination, there is a direct use immunity for the answers given, although not a derivative use immunity. This affects the rights of the person being questioned but it does not affect the rights of the accused. No right that the accused had under the accusatorial system of criminal justice is adversely affected by the person being compelled to answer questions, rather than voluntarily answering questions, about matters the subject of the pending criminal proceedings against the accused.

81. The giving of a notice compelling the person to answer questions might lead to the loss of the chance that the person might have declined any invitation to answer questions. But the loss of a forensic advantage is not a right of the accused under the accusatorial system of criminal justice. As Gageler and Keane JJ said in Lee v NSW Crime Commission at [324]:

The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton v Oades.

82. I would, therefore, not read down s 118BA of the EPA Act so as to prevent it from being used against a person other than a defendant in pending criminal proceedings, just because the criminal proceedings have been commenced: ASIC v Elm Financial Services at [59]; De Greenlaw v National Companies and Securities Commission at 793.

The contempt of court ground

Mr Zhang’s submissions

83. Mr Zhang’s second ground of review was that the issue of the Notice was a contempt of court. This ground was distinct from Mr Zhang’s second argument on the statutory construction ground. That argument was that the statutory power in s 118BA of the EPA Act should not be read as authorising a contempt of court in the sense of an unlawful interference with the administration of justice. Mr Zhang’s second ground of review, however, is that the issue of the Notice actually involved a contempt of court. Mr Zhang cited the statement of principle in Lee v NSW Crime Commission at [194] per Kiefel J:

The law of contempt is concerned with judicial process and the exercise of judicial power, and is the mechanism by which a court ensures the integrity of the system of justice which it administers. Conduct will amount to a contempt if there is a real risk, as opposed to a remote possibility, that justice will be interfered with. The essence of contempt of this kind is ‘a real and definite tendency to prejudice or embarrass pending proceedings’.

See also at [319] and [320] per Gageler and Keane JJ and Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 56.

84. Mr Zhang submitted that an extra-curial executive inquiry parallel with a criminal proceeding in relation to the same subject matter cannot be conducted so as to actually interfere with the administration of justice or where there is a real risk, as opposed to a remote possibility, of such an inference.

85. Mr Zhang submitted that there was a real risk that compelling Mr Ferguson to answer questions under the Notice would interfere with the administration of justice, or the accusatorial system of criminal justice, in the particular criminal proceedings against Mr Zhang. The reasons Mr Zhang advanced for there being a real risk of such interference were the same as those he advanced on the second statutory construction argument. Essentially, Mr Zhang loses the forensic advantage that Mr Ferguson might not have voluntarily provided information in relation to the matters the subject of the criminal proceedings against Mr Zhang; instead, Mr Ferguson would be compelled, under pain of punishment, to answer questions in relation to those matters.

86. Mr Zhang also put the argument in the converse. Rather than focussing on the disadvantage or prejudice that Mr Zhang might suffer in his defence of the prosecution against him, Mr Zhang focussed on the advantage the prosecutor would obtain from being able under the Notice to compel Mr Ferguson to answer questions in relation to the matters the subject of the prosecution.

87. Mr Zhang submitted that it would constitute a species of contempt of court, occasioning a real risk that justice will be interfered with, for the Council to exercise the power under s 118BA to force the interrogation of Mr Ferguson for the sole or dominant purpose of obtaining evidence to be used in criminal proceedings against Mr Zhang when that would be to obtain an advantage which could not be obtained under the procedural rules applying in those proceedings: Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd [2007] NSWSC 1215 at [90]; NSW Food Authority v Nutricia Australia Pty Ltd at [97]-[137].

88. Mr Zhang submitted that there was no curial process of the Local Court that would permit the compulsory interrogation of Mr Ferguson in relation to matters the subject of the pending criminal proceedings against Mr Zhang prior to Mr Ferguson being called to give evidence at the trial. The court process of a subpoena to give evidence would only permit interrogation at the trial, not beforehand. Moreover, the procedure for interrogation of Mr Ferguson at the trial is markedly different from the procedure for interrogation permitted by s 118BA, and the procedural safeguards under the accusatorial system of criminal justice in favour of the defendant at the trial during the interrogation of Mr Ferguson would be absent in any interrogation permitted under s 118BA. Mr Zhang submitted, therefore, that the Council would obtain an advantage by interrogating Mr Ferguson under s 118BA that it could not obtain under the procedural rules applying in the criminal proceedings against Mr Zhang.

The Council’s submissions

89. The Council submitted that the issuing of the Notice by Mr Woodgate did not amount to a species of contempt of court. The Council referred also to the statements of principle by Gageler and Keane JJ in Lee v NSW Crime Commission at [320]. In particular, the Council stressed the statement that a finding of a real risk or definite tendency to interfere with the administration of justice:

necessarily requires more than abstract assertion: it requires the finding at least of some logical connection between the action that is impugned and some feared impediment to the conduct of the proceedings that are pending, which impediment can properly be characterised as an interference with the administration of justice or, more specifically in a particular case, as unfairness to an accused.

90. The Council submitted that the Court would not find that there is the requisite impediment to the conduct of the pending criminal proceedings against Mr Zhang or the required logical connection between the compulsory interrogation of Mr Ferguson under s 118BA and any feared impediment to the conduct of the proceedings. The Council accepted that interrogation of Mr Ferguson might lead to the Council obtaining evidence relevant to the pending criminal proceedings against Mr Zhang. However, any such evidence would need to be notified and adduced at the trial in accordance with the usual curial processes. The fact that the Council obtains relevant evidence through the compulsory interrogation of Mr Ferguson under s 118BA does not amount to a contempt of court: ASIC v Elm Financial Services at [79].

91. The Council submitted that the difference between a defendant and some other person who might not even become a witness is a significant factor in determining whether the issue of a notice under s 118BA amounts to contempt: ASIC v Elm Financial Services at [71] and NSW Food Authority v Nutricia Australia Pty Ltd at [92]. The Council submitted that the advantage that the Council might obtain by compulsorily interrogating under s 118BA a person who is not a defendant in pending criminal proceedings and who might not even be called as a witness in those proceedings is not the kind of advantage that the cases discussing the securing of an advantage not available under the rules of court have in mind: ASIC v Elm Financial Services at [81].

Finding that no contempt of court established

92. I find that the issue of the Notice, and the compulsory interrogation of Mr Ferguson that it enables, do not amount to a contempt of court. Mr Zhang has not established that there is or will be an actual interference with the due administration of justice in the criminal proceedings against Mr Zhang or a real risk of such interference. The issue of the Notice, and the compulsory interrogation of Mr Ferguson that it enables, do not impede the conduct of the criminal proceedings against Mr Zhang or prejudice his defence or otherwise interfere with his rights under the accusatorial system of criminal justice.

93. I also find that the issue of the Notice does not give the Council an improper advantage such as would constitute a contempt of court. Mr Zhang relied upon the formulation of the test for contempt of court given by James J in Tumney (NSW Food Authority) v Nutricia Australia Pty Ltd at [90] that:

… if a statutory power conferred in general terms is sought to be exercised by a party to pending court proceedings for the sole purpose or a dominant purpose of obtaining evidence to be used in the pending proceedings and in such a way as to obtain an advantage which could not be obtained under the procedural rules of the court in which the proceedings are pending, then there would be a contempt of the court in which the proceedings are pending.

94. The mere fact that a party in pending litigation obtains evidence under a statutory power for the purpose of assisting the party, and thereby gains an advantage, does not necessarily constitute a contempt of court. To constitute a contempt of court, the party must exercise the power in such a way that it interferes with the course of justice: NSW Food Authority v Nutricia Australia Pty Ltd at [142]. A mere “advantage” will not, when expressed in those terms, constitute an impermissible interference with court proceedings so as to amount to a contempt of court: NSW Food Authority v Nutricia Australia Pty Ltd at [145]. In Environment Protection Authority v Caltex Refining Co Pty Limited at 558-559, McHugh J said:

Obtaining evidence under a statutory power for the purpose of assisting a party in pending litigation does not necessarily constitute an interference with the procedures of the courts. The evidence gathering procedures of a party are not limited to the use of court procedures. No interference with the processes of the courts or the course of justice occurs merely because a party avails itself of a statutory power to obtain evidence during the course of pending litigation. The mere use of such a power during the pendency of litigation is not a contempt of court even when the sole purpose of the exercise of the power is to assist a party to obtain evidence for use in that litigation. To constitute a contempt, the party must exercise the power in such a way that it interferes with the course of justice. Thus, there might be a contempt if the exercise of a statutory power ‘would give such a party advantages which the rules of procedure would otherwise deny him.’ But something more is required than that the party exercised the power for the purpose of obtaining evidence for use in pending litigation.

95. The statement quoted by McHugh J is by Gibbs CJ in Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission at 468.

96. The statement that the rules of procedure would “otherwise deny” the party the advantage given by the exercise of a statutory power is important. It is what makes the exercise of the statutory power an interference with the processes of the courts or the course of justice. An example is given by NSW Food Authority v Nutricia Australia Pty Ltd. The rules of procedure of the Supreme Court did not grant a judge power to require the defendant in the summary criminal proceedings in that court to answer interrogatories administered by the prosecutor. Accordingly, for the prosecutor to use a statutory power to interrogate the defendant in the pending criminal proceedings would be to obtain an advantage which the rules of procedure otherwise denied the prosecutor. That would be a significant impingement upon the integrity of the court and an interference with the processes of the court and the course of justice.

97. In the present case, the use of the power under s 118BA of the EPA Act to compel a person who is not a defendant in pending criminal proceedings and who is not yet even a witness to answer questions in relation to matters the subject of the criminal proceedings does not give the Council an advantage which the rules of procedure of the Local Court would otherwise deny the Council. Hence, the use of the power under s 118BA does not impermissibly interfere with the pending criminal proceedings in the Local Court or the course of justice.

The defective notice ground

Mr Zhang’s submissions

98. Mr Zhang submitted that, in order to be valid, a statutory notice under s 118BA must identify to the addressee:

1. the functions of the Council under the EPA Act, the exercise of which reasonably requires the provision of information from the addressee;

2. the matter within the functions of the Council under the EPA Act in respect of which information from the addressee is said to be reasonably required; and

3. that the addressee is suspected on reasonable grounds to have knowledge of such matters.

99. Mr Zhang submitted that the Notice issued by Mr Woodgate failed to identify any of these matters. The matters in (a) and (c) were not addressed at all and the matter in (b) was insufficiently addressed. Mr Zhang submitted that the statement in the Notice that the matter in relation to which Mr Ferguson is required to answer questions is “the over excavation at 8 Haughton Street, Linley Point” is an insufficient identification of the matter: see D’Anastasi v Environment, Climate Change and Water (NSW) [2011] NSWCA 374; (2011) 81 NSWLR 82 at [55], [105].

100. Mr Zhang also submitted that the Notice was defective in specifying that the Council, rather than the authorised person of Mr Woodgate, required Mr Ferguson to attend at the specified place and time to answer questions.

101. Mr Zhang submitted, therefore, that these defects in the Notice invalidated it.

The Council’s submissions

102. The Council noted that “courts must not be too ‘precious or hypercritical’ about the form of the notice so long as it is clear”: D’Anastasi v Environment, Climate Change and Water (NSW) at [47].

103. The Council submitted that the Notice identified the power under which it was issued (s 118BA), the subject matter of the questions to be asked, and where and when Mr Ferguson was due to appear to answer those questions. The Notice was sufficiently clear about what it required Mr Ferguson to do in order to comply with it. Neither the EPA Act nor the regulations prescribe any form for a notice under s 118BA of the EPA Act. Accordingly, the Notice was issued in accordance with the EPA Act.

104. The Council submitted that s 118BA did not require the Notice to identify in its terms either the functions of the Council under the EPA Act, the exercise of which reasonably requires the provision of information from the addressee, or that the addressee was suspected on reasonable grounds to have knowledge of matters in respect of which that information was required.

105. The Council accepted that s 118BA requires the satisfaction of the preconditions, that the authorised person suspect on reasonable grounds that the addressee have knowledge of matters in respect of which information is reasonably required to enable the Council to exercise its functions under the EPA Act, in order to enliven the power to require, by the notice in writing, the addressee to answer questions in relation to those matters. However, the Council submitted that it is not necessary to specify the preconditions, or the satisfaction of the preconditions, in the form of the written notice.

106. The Council accepted that the Notice was required to identify the matter in relation to which Mr Ferguson was required to answer questions. However, the Council submitted that the Notice did identify with sufficient clarity the matter as “the over excavation of 8 Haughton Street, Linley Point”.

107. The Council distinguished the decision in D’Anastasi v Environment, Climate Change and Water (NSW) on the facts, as the notice the subject of the challenge in that case required answering a series of questions rather than attendance for an interview. The Council submitted that the important difference between the two kinds of notice is that there is no capacity to clarify with the person issuing the notice to answer questions what the notice relates to if there is any doubt, but such a difficulty does not arise when a person is required to attend an interview to answer questions.

108. The Council submitted that, although the Notice in para 2 erroneously referred to the Council instead of the authorised person, Mr Woodgate, a reading of the Notice as a whole makes clear that the authorised person, Mr Woodgate, is the person requiring Mr Ferguson to attend at the specified place and time to answer questions.

109. The Notice specifies at the outset the “name of authorised officer” as “Matthew Woodgate”. Paragraph 1 of the Notice expressly states:

1.   Matthew Woodgate, Principal Building Surveyor, being an Authorised Officer with responsible authority under the Environmental Planning and Assessment Act 1979 (NSW) (“the Act”) and for the purposes of Part 6, Division 1A of the Act hereby gives you notice.

110. In para 2 of the Notice, after the specification of the place and the time and date at which Mr Ferguson is required to answer questions, the Notice states “contact the writer … to confirm”. The writer is specified at the end of the letter as “Matthew Woodgate”. Again, under Mr Woodgate’s name and signature is the statement “Duly authorised under Part 6, Division 1A of the Environmental Planning and Assessment Act 1979 (NSW)”.

111. The Council submitted, therefore, that the Notice is clear in identifying Mr Woodgate as the authorised person who was requiring Mr Ferguson to attend at the specified place and the specified time and date to answer questions.

112. In any event, however, the Council submitted that the erroneous reference in para 2 of the Notice to the Council rather than Mr Woodgate is not one that would lead to the invalidity of the Notice.

Finding that the Notice is defective

113. I find that the Notice is defective and invalid in only one respect, being that it failed to indicate to the addressee the matter with which it was concerned.

114. Section 118BA does not prescribe any form in which a notice is to be issued. However, the terms of s 118BA do specify certain minimum requirements for a notice under s 118BA. The notice must:

1. be in writing;

2. be issued by an authorised person (who is a person authorised to enter premises under Div 1A of Pt 6);

3. be addressed to a person referred to in s 118BA(1), being “an accredited certifier, a person carrying out building work or subdivision work or any other person whom the authorised person suspects on reasonable grounds to have knowledge of matters in respect of which information is reasonably required to enable the council concerned to exercise its functions under this Act”;

4. specify a place and time at which the person is required to attend, such place and time to be nominated in accordance with s 118BA(4);

5. require a person referred to in s 118BA(1) to attend at the specified place and time to answer questions; and

6. identify the matters in relation to which the person is required to answer questions.

115. The terms of s 118BA do not require, expressly or by necessary implication, that the Notice specify:

1. the functions of the council under the EPA Act the exercise of which reasonably requires the provision of information from the person to whom the notice is given; or

2. that the authorised person suspects on reasonable grounds the person to whom the notice is given to have knowledge of matters in respect of which information is reasonably required to enable the council to exercise its functions under the EPA Act.

116. The matters in the preceding paragraph do need to be satisfied in order for the authorised person to exercise the power in s 118BA to give a notice to the person. However, s 118BA does not require that these matters be stated in the notice.

117. Hence, the Notice issued by Mr Woodgate was not defective in not stating either the functions of the Council under the EPA Act or that Mr Woodgate suspected on reasonable grounds that Mr Ferguson had knowledge of matters in respect of which information was reasonably required to enable the Council to exercise its functions.

118. The Notice was, however, required to identify the matter in relation to which Mr Ferguson was required to answer questions. The Notice purported to identify the matter as being “the over excavation of 8 Haughton Street, Linley Point”. However, such identification is not clear or certain. In terms, Mr Ferguson is told he is required to answer questions only in relation to “over excavation” and not “excavation” of 8 Haughton Street, Linley Point. What does “over excavation” mean? From what point or points is the excavation to be measured? The notion of over excavation suggests that there is some reference point or standard delineating the limits of excavation, such that any excavation beyond that reference point or standard will be “over excavation”. But what is the reference point or standard that should be used to measure the excavation of 8 Haughton Street, Linley Point so as to determine whether there has been over excavation?

119. The failure of the Notice to answer these questions left the identification of the matter in the Notice uncertain and unclear. See the similar problem of the lack of specificity of what “height” and “overall height” meant in a development consent in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 741.

120. I would assume that the Council intended that the reference point to determine whether there was “over excavation” is the development consent in force at the time that excavation was undertaken on the land. But this is not stated in the Notice. The identification in the Notice of the matter needs to be sufficiently clear and certain in order for it to be valid. This was also the defect in the notice in D’Anastasi v Environment, Climate Change and Water (NSW). The lack of proper identification of the matter in the notice in that case led to the Court of Appeal concluding that the notice was invalid.

121. I do not consider, however, that the one erroneous reference to the Council instead of Mr Woodgate as the authorised person in para 2 of the Notice invalidates the Notice. As the Council submitted, the Notice read as a whole makes clear that Mr Woodgate is the authorised person requiring Mr Ferguson to attend at the specified place and time to answer questions. There are numerous references in the Notice to Mr Woodgate being the authorised person giving the Notice under s 118BA requiring Mr Ferguson to answer questions. In these circumstances, the one erroneous reference does not invalidate the Notice.

Conclusion

122. I find that the Notice is ultra vires in two respects: first, the Notice was issued to enable the Council to exercise its prosecutorial function in aid of the pending criminal proceedings against Mr Zhang but that function is not a function under the EPA Act, and secondly, the Notice failed to identify to the addressee the matter in relation to which the questions were to be asked. The Notice should therefore be declared invalid.

123. These errors do not, however, mean that the Council cannot validly exercise the power under s 118BA to give a notice to a person other than Mr Zhang, notwithstanding that criminal proceedings are pending against Mr Zhang. It is therefore not appropriate to grant the injunctive relief sought by Mr Zhang.

124. The costs of the proceedings should follow the event.

125. The orders of the Court are:

1. Declare that the notice issued by Mr Woodgate on 29 August 2014 to Mr Ferguson to attend a place to answer questions is invalid.

2. Order that the respondents pay the applicant’s costs of the proceedings.

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Decision last updated: 06 February 2015