DISTRICT COURT OF QUEENSLAND

CITATION: Lucy v OCC Holdings P/L & Ors [2008] QDC 004

PARTIES: PAUL LUCY (Appellant) v OCC HOLDINGS PTY LTD (ACN 104 553 497) (First Respondent) PELICAN LINKS PTY LTD (ACN 107 914 590) (Second Respondent) JACQUELINE MAREE CONNOLLY (Third Respondent) JOHN CONNOLLY (Fourth Respondent) KIERAN O’CONNOR (Fifth Respondent)

FILE NOS: D 360-364 of 2006, Maroochydore

DIVISION: Appellate

PROCEEDING: Prosecutor’s appeals under s 222 of Justices Act 1886 against orders permanently staying complaints and that he pay the defendants indemnity costs

ORIGINATING COURT: Magistrates Court of Maroochydore

DELIVERED ON: 31 January 2008

DELIVERED AT: Brisbane

HEARING DATES:

26 – 28 November, 6 December, 2007

JUDGE: Robin QC DCJ

ORDER: Appeals allowed, prosecutions remitted to Magistrates Court for further hearing

CATCHWORDS: Justices Act 1886 s 47, s 48 s 222, s 225 – Integrated Planning Act 1997 s 4.3.3, s 4.4.3, s 6.1.35A, s 6.1.44 – Local Government (Planning and Environment) Act 1990 s 87 – complaint sworn by Council officer against company charging contravention of a condition of a development approval under s 4.3.3 – complaints against senior officers of failing to ensure compliance by company – whether complaint invalid for failure to state essential ingredients of offence – whether complaint should have indicated that s 4.3.3 definition of “development approval” was relied on rather than Schedule 10 definition – whether complaint should have set out facts and statutory provisions whereby new owner of development site became bound by rezoning

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approval granted to previous owner under the repealed Local Government (Planning and Environment) Act 1990 rather than simply call it “successor in title” – whether complaint should specify whether “rezoning approval” of 1996 was under s 4.4(5) or s 4.7(5) of the repealed Act – whether a delegation by Council to its Environment Branch occurred and should be alleged – condition forbade clearing of native vegetation without written approval of “Council’s Environment Branch” – in about 1998 Environment Branch subsumed in Council’s Growth Management Unit – complaints alleged clearing of native vegetation when approval had not been sought – whether allegation that approval was not obtained or granted was necessarily implied – whether complaints failed for uncertainty or for uncertainty of the condition – effect of Court of Appeal determination in proceedings between Council and company that the condition did not fail for lack of finality or for precluding the exercise of rights under the rezoning approval – condition did not fail for uncertainty – effect of change in Council’s administrative structures considered – defendants’ contention that condition ceased to have effect after the restructure rejected – whether reference in particulars to Environment Branch approval “or any approval at all” vitiated the complaint by introducing uncertainty or alleging an offence unknown to the law – defence counsel sought amendment to delete “or any approval at all” but Magistrate refused – prosecutor opposed any amendment – whether appellant bound by that opposition – whether, if amendment of complaint were appropriate, the Magistrate was obliged to amend – whether too late to amend – Magistrate held the defendants had a case to answer – whether Magistrate, taking the view he did that complaints was legally defective (and an abuse of process), should have dismissed, rather than permanently stay them – whether omission to allege abolition of Environment Branch amounted to abuse of process – “person” in s 4.3.3 held to apply generally, not limited to persons specifically identified in legislation as bound by development approval conditions.

COUNSEL: P. Lyons QC and D. O’Brien for appellant

G. R. Allan for respondents

SOLICITORS: Corrs Chambers Westgarth for appellant

Brad Egerton for respondent

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Reasons for Judgment

[1] Mr Lucy appeals under s 222 of the Justices Act 1886 against a Magistrate’s

permanently staying his complaints against each of the respondents and ordering

payment to them of indemnity costs. So far as the second respondent Pelican Links

Pty Ltd is concerned, the parties reached a compromise embodied in an order of

Judge Brabazon QC in which the Magistrate’s orders were set aside, but the

complaint was dismissed. There is a cross appeal by each of the other respondents

claiming that the Magistrate’s orders should be changed so that each complaint is

dismissed rather than stayed.

[2] Each of the complaints was sworn by Mr Lucy as “duly authorised officer” of the

Council of the City of Caloundra, and is headed Integrated Planning Act section

4.3.3. The section provides:-

“4.3.3 Compliance with development approval (1) A person must not contravene a development approval,

including any condition in the approval.

Maximum penalty—1665 penalty units.

(2) Subsection (1) applies subject to sections 4.3.6 and 4.3.6A. (3) Also, subsection (1) does not apply to a contravention of a

condition of a development approval imposed, or required to be imposed, by the administering authority under the Environmental Protection Act 1994 as the assessment manager or a concurrence agency for the application for the approval.

(4) In subsection (1)—

development approval includes an approval under section 4.4(5) or 4.7(5) of the repealed Act”.

[3] The principal complaint is that against OCC Holdings Pty Ltd charging that on 21

July 2004 at Caloundra “it contravened a condition of a development approval”.

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[4] Other relevant provisions of the Integrated Planning Act (IPA) include:

“4.4.1 Proceedings for offences A proceeding for an offence against this Act may be instituted in a summary way under the Justices Act 1886.

4.4.2 Limitation on time for starting proceedings A proceeding for an offence against this Act must start--

(a) within 1 year after the commission of the offence; or (b) within 6 months after the offence comes to the

complainant's knowledge. 4.4.3 Executive officers must ensure corporation complies

with Act (1) The executive officers of a corporation must ensure the

corporation complies with this Act. (2) If a corporation commits an offence against a provision of

this Act, each of the corporation's executive officers also commits an offence, namely, the offence of failing to ensure the corporation complies with the provision. Maximum penalty for subsection (2)--the penalty for the contravention of the provision by an individual.

(3) Evidence that the corporation has been convicted of an offence against a provision of this Act is evidence that each of the executive officers committed the offence of failing to ensure the corporation complies with the provision.

(4) However, it is a defence for an executive officer to prove--

(a) if the officer was in a position to influence the conduct of the corporation in relation to the offence--the officer exercised reasonable diligence to ensure the corporation complied with the provision; or

(b) the officer was not in a position to influence the conduct of the corporation in relation to the offence”.

[5] The prosecutions were commenced in time. The individual respondents were

proceeded against as executive officers of OCC Holdings Pty Ltd. Liability in them

is dependent upon the company being duly convicted. The circumstances were such

that lack of a conviction of Pelican Links was not fatal to the other prosecutions.

See [53] below. The participation (or otherwise) of the two companies in the

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clearing alleged was by no means comparable. The respondent gains no assistance

from evidence pleaded before Judge Brabazon QC regarding Pelican Links’

involvement.

[6] The particulars included in the complaint and summons referable to OCC Holdings,

preceding the conclusion that “AND THE DEFENDANT DID THEREBY commit

an offence contrary to the Act in such case made and provided: Section 4.3.3(1) of

the Integrated Planning Act 1997” were:

“Particulars (1) Condition A12 of a certain rezoning approval given by the

Council on 5 December 1996 provides:

‘No clearing of native vegetation is to occur on the subject development site without the prior written approval of Council’s Environment Branch. It will be necessary for the applicant and any subsequent owners to make a formal application (including plan) outlining reasons for clearing and identifying the impact of such clearing’.

(2) The rezoning approval applies to land now described as Lot 65

SP 166661. (3) The rezoning approval is a development approval to which the

Integrated Planning Act 1997 applies. (4) At all material times, Pelican Links Pty Ltd was a subsequent

owner of the subject land. (5) Pelican Links Pty Ltd caused or permitted the defendant to

implement the development of the subject land on behalf of Pelican Links Pty Ltd.

(6) On the date alleged the defendant caused some 4.85 ha of the

subject land to be cleared of native vegetation. (7) The defendant did not seek the prior written approval of

Council’s Environmental Branch or any approval at all. (8) The defendant did not make any formal application outlining

reasons for clearing and identifying the impact of such clearing.”

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[7] After a hearing on 6, 8 and 9 February, 7, 19 and 20 June, 28 August to 1st

September and 3rd October 2006, a good deal of which was taken up by legal

argument, the learned Magistrate on 24 October 2006 gave his decision on a no case

to answer submission. Although he read his reasons into the record at page 763 ff,

he distributed reasons in a written form, by reference to which the appeals were

conducted. A similar procedure was followed on 1 December 2006 when reasons

for the costs order in favour of the defendants were published and formal orders

were made.

[8] Putting things briefly, the defendants argued that each complaint was fatally flawed

for failure to include matters that ought to have been there1 and that condition A12

was without legal effect.

[9] Reference might be made at this point to sections 47 and 48 of the Justices Act

which are the local version of Jervis’ Acts, introduced earlier in the 19th century in

the United Kingdom to overcome a troubling phenomenon of prosecutions failing

upon technicalities:

“47 What is sufficient description of offence (1) The description of any offence in the words of the Act,

order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law…

48 Amendment of complaint If at the hearing of a complaint, it appears to the justices that—

(a) there is a defect therein, in substance or in form,

other than a noncompliance with the provisions of section 43; or

(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

1 It was also contended that the inclusion of some words vitiated the complaints. See [74] ff.

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(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then— (d) if an objection is taken for any such defect or

variance—the justices shall; or (e) if no such objection is taken—the justices may; make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice”.2

[10] The first matter dealt with by the reasons of 24 October 2006 was the defendants’

[sic] application for amendment of the particulars by substituting 4.71ha for the

slightly larger area particularised and by deleting from (7) the words “or any

approval at all”. On the authority of McClintock v Noffke; ex parte Noffke [1936] St

R Qd 73, as his Honour put it at pages 1 – 2, if those words were deleted:

“the prosecutor would be confined in his case to show that no approval issued from the Environment Branch. I interpret the application as a means of supporting the uncertainty submission which will be dealt with shortly because it would by extension then be impossible from the time that the Environment Branch ceased to exist to obtain such approval and the prosecution would be precluded from submitting that other approval from within another section of Council would comply with the condition”.

[11] As will appear, much of the defendants' (respondents in the appeals') case depends

on the Council's having reorganised its administration in about 1998 to amalgamate

the former Environment Branch into the Growth Management Unit which was

something patently known to Mr Lucy when he signed a letter dated 18 September

1998 on behalf of the Council addressed to the (then) developer's agent confirming

2 The following section should also be noted:

“49 Amendment If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or whether or not the defendant is in custody, may grant the defendant bail or may suffer the defendant to go at large without bail”.

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approval of drawings for and construction of bulk earthworks and drainage works

for Pelican Waters golf course and residential (Exhibit 29). At that date, none of the

respondents was on the scene. Although the Council, so far as available evidence

goes, did not highlight the administrative change, neither was it concealed. For

example, in connection with some clearing contemplated by one or both of the

corporate respondents, the relevant Council officer responded to their agent's

request for contact by the following email (Exhibit 33 tendered on 9 February

2006):

"Sent: Wednesday, 26 May 2004 10:05 AM To: Peter Hickey Subject: RE: Tree clearing Request for Pelican Waters Peter, Thankyou for your information. As discussed at our site meeting of 21/05/04, Council required that formal advice be forwarded from NRM&E in relation to the clearing of regrowth pursuant to the Vegetation Management Act 1999 – before any approval is granted by Council. This will expedite Council’s assessment for the vegetation clearing as required by condition 12 of the rezoning permit for the golf course site. Further, as indicated at our site meeting once an assessment and approval has been granted by NRM&E, the clearing would be required to be undertaken under the supervision of Council Environment Officers in accordance with the following conditions: This clearing may only occur on areas of previously filled land, in accordance with existing approvals for the site, on areas above HAT: The method of vegetation removal is a “Broad Acre Mulcher” or rubber tracked excavator with a vegetation “macerator head” only. This is to minimise soil disturbance, and subsequent weed recruitment and will leave a layer of mulched plant material on the site: Be advised however that any areas that are proposed to be cleared for “preliminary survey work” may be required to be revegetated, should a subsequent approval alter the use of this site. Regards, Cameron Milne Environment Officer Growth management Unit – Caloundra City Council"

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[12] The day before, Exhibit 29, being an Exhibit to an affidavit of Mr Hickey, had been

tendered. Exhibit 2 in this appeal was a copy of Judge Robertson's order of 4

October 2004 made in the Planning and Environment Court whereby the two

companies were restrained from destroying or otherwise clearing any native

vegetation on the defined part of the site without authorisation and certain other

mandatory and prohibitory orders were made, operative “until the Council's senior

environment officer Growth Management gives a direction to the contrary, or until

further order of the Court”. Mr Milne described his employment “as environment

officer in the town planning section, Growth Management” in evidence on 9

February 2006 (page 306). On 19 June 2006, Mr Birbeck, who had formulated

Condition A12, at page 445 expressed some uncertainty whether he had been the

senior officer in the Environment Branch about May 1996 when the relevant

development application was assessed because he could not recall the date when

that branch was amalgamated with “Peter Dousher's branch”. He mentioned a

“complete restructure” about 1998 when "the Environment Branch was abandoned.

And I went then into the planning and growth management unit". More cross-

examination followed regarding asserted difficulties about Condition A12 and a

possible application to clear land to the no longer existing Environment Branch. Mr

Birbeck's evidence continued until 28 August. Next morning, Mr Allan, for the

defendants made his “no case submission” (620) and his application to strike out “or

any approval at all”, embellished by criticism of the Council for its “gravely serious

omission” (628), whereby "the Planning and Environment Court was deliberately

misled” (629), to disclose the disappearance of the Environment Branch. It was said

it was “absolutely disgraceful that senior officers . . . had not advised Council . . .

that there was no possibility of success in the institution of this prosecution because

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. . . as they must have known, Council's Environment Branch no longer existed”

(628).

[13] Subject to what has been said above about Judge Robertson's order referring to the

Growth Management Unit (an aspect which may not have caught or been drawn to

the Judge's attention), it seems clear that in the proceeding in the Planning and

Environment Court (Caloundra City Council v Pelican Links Pty Ltd [2005]

QPELR 128) and in the ensuing unsuccessful application for special leave to appeal

(Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84) everything was

on the basis that decisions would be made by the Environment Branch of the

Council, subject to what might follow from the reference to “growth management”

in the order. Otherwise, there is nothing to gainsay Mr Allan’s assertion that in

those proceedings the assumption was that any approval under Condition A12

would be an Environment Branch approval.

[14] The learned Magistrate rejected the defence application to amend paragraph (7) of

the particulars, appreciating that the prosecution case was “that an approval for

clearing native vegetation from another section of Council would have equated to

the now non-existent Environment Branch” (page 2):

“It is a matter for the prosecution as to what particulars they provide

and a matter of law for the court as to whether the particular words

objected to in this instance provide to the prosecutor a cover for the

gap in his case caused by the amalgamation . . . accordingly I do not

propose to make any ruling in respect of those words in paragraph 7

and I choose to make no ruling in respect of area of 4.85 ha in

paragraph 6 at this time”.

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[15] The next part of the reasons explained his Honour's decision to allow the prosecutor

to re-open his case to tender an extract from the Gazette showing the Governor-in-

Council's approval of a certain amendment to the planning scheme.

[16] Next, at page 4, his Honour expressed the opinion based on “the evidence so far that

there is clearly a case for the defendants to answer”. Although the reasons do not

declare it, the circumstances were dramatic. Alerted to the possibility that clearing

was going on, Council officers who attended the site were refused access by

security officers there; they resorted to use of a helicopter to obtain a photographic

record of large-scale clearing of substantial trees which had apparently occurred and

which, judging by the presence of machinery in the photographs, may still have

been underway. On earlier occasions, clearing had taken place with invited Council

officers in physical attendance to supervise.

Was Condition A12 Uncertain?

[17] The published reasons went on to resolve a number of issues favourably to the

defendants, each of which was identified as a factor relevant to a discretion to stay.

The first was uncertainty of Condition A12 in terms of the test indicated by Kitto J

in Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 at 69-71:

“… The questions before us are principally directed to ascertaining whether, if the Minister purports to carry out the intention stated in the notice, the result will be the valid creation of further "conditions" of the licences. What, then, is essential for the validity of a condition which the Minister purports to impose upon a licence, either originally or by way of addition? Good faith on the part of the Minister is necessary: it is not here impugned. Consistency with the Act and relevance to its purposes are undoubtedly required, but I have not been able to see that the proposed further conditions are open to attack in either of these respects. There is, however, another requisite of validity, as I

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read the Act, and that is that the condition shall possess reasonable certainty of meaning and application. The reasons which seem to me to lead to this conclusion may be stated quite briefly. The conditions the Minister is authorized to impose are not conditions of forfeiture in the sense that upon breach the licence will come to an end, but neither are they mere terms for breach of which some penalty may be imposed or some step taken to enforce observance. The sanction behind them is found in a provision, in s.86(1)(c), that where the Minister is satisfied that a condition has not been complied with he may suspend or revoke the licence. If he is so satisfied, and if he decides to suspend or revoke the licence, no court has authority to substitute its opinion or decision for his. But the courts have authority, on well-recognized principles, to declare that he is not lawfully satisfied, and to hold void any purported suspension or revocation that depends upon his being satisfied, if he has proceeded upon an erroneous view as to what constitutes a breach of the relevant condition. This being prefaced, the nature of the power to impose conditions may be described from two points of view. From the licensee company's point of view it is a power in the Minister to subject the licence to a liability to be suspended or revoked in the event of his being satisfied of a non-compliance with the stipulation that it makes. From the Minister's point of view it is a power to prescribe for himself (and his successors) a standard which he (and they) will be in law bound to apply according to its true meaning whenever an occasion arises to decide under s.86(1)(c) whether he is satisfied that a non-compliance has occurred. In this context it seems to me a necessary conclusion that what the Act means by a "condition" is a specification of acts to be done or abstained from by the licensee company - a specification telling the company what it is to do or refrain from doing, and thus on the one hand enabling it in regulating its conduct to know whether it is imperilling the licence or not, and on the other hand making clear to the Minister for the time being what test he is to apply in order that any judgment he may form as to compliance or non-compliance may not be vitiated by error of law. A specification cannot, I think, fulfil this dual function if it is so vaguely expressed that either its meaning or its application is a matter of real uncertainty; and for that reason it seems to me that on the proper construction of the Act the Minister's power to impose conditions is to be understood as limited to the imposition of conditions that are reasonably certain - that is to say (as has been said in a long line of cases with respect to conditions of forfeiture created by the dealings of private persons with other forms of property) conditions such that from the moment of their creation the Court can say with reasonable certainty in what events forfeiture will be incurred: cf. In re Sandbrook; Noel v. Sandbrook (1912) 2 Ch 471, at p 477 Such certainty includes both certainty of expression and certainty in operation: In re Exmouth; Exmouth v. Praed (1883) 23 Ch D 158, at p 164; Sifton v Sifton (1938) AC 656, at pp 670, 671; Clayton v Ramsden (1943) AC 320, at pp 326, 329, 332.

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What is the alternative to the view I have expressed? It is that any stipulation at all concerning the conduct of the licensee company is within the Minister's power to impose, even though it fail to give the company any sure guidance as to what is required of it. To take an example, suppose the Minister were to impose a condition that the licensee should conduct its business in all respects with good taste. Surely a construction of the Act that would make that condition within power would be so unreasonable that it ought not to be adopted if any more sensible construction is fairly open. After all, the power given to the Minister is to prescribe the conditions of his own authority to deprive a licensee of its licence. Is it really to be supposed that the Parliament intended that he might prescribe conditions in words of such dubious import that no one but himself would be sure how far he meant them to go? The Parliament did not give the Minister power to suspend or revoke licences at will. The course it took was to require him to describe in advance, by the formal method of imposing conditions upon a licence, what conduct of the licensee would expose the licence to suspension or revocation. I can see no justification for so loose an interpretation of the Act that a form of words which by reason of vagueness fails to perform that function may be held a condition within the intended scope of the authority. Judged by this test, the so-called conditions set out in the Minister's notices to the plaintiffs are in my opinion unsupportable as conditions which the Minister has power to impose. The point is not that the proposed conditions offend against a general principle that uncertainty in executive instruments spells legal invalidity, for there is no such general principle: see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210 The point is that a requirement of certainty in the sense I have described is inherent in the provisions by which the Minister's power is created: cf. per Diplock L.J., Mixnam's Properties Ltd. v. Chertsey Urban District Council (1963) 3 WLR 38, at p 53”.

[18] The learned Magistrate found “sufficient uncertainty in the operation and

application of the condition such that it should be considered in the context of the

other matters”: page 8. I agree with his observation there that provisions of the Acts

Interpretation Act and the Statutory Instruments Act were not a help to overcome

“uncertainty”. His Honour thought certainty required “conditions which without

much difficulty will allow the developer to know what it has to do” and which

would enable the Council to “clearly see whether there is compliance or non-

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compliance”. In the end he appears to have had no difficulty from lack of

specification whether the “formal” application should be in writing or with what he

took (based on reference to Condition A11, referring to the Council's “Environment

and Parks Branch") to bespeak a possible omission: “the relevant approving body

has always been referred to in evidence as the Environment Branch which has been

amalgamated into the Growth Management Branch and no longer has a separate and

identifiable persona”: page 6. I agree with his view that nothing requires the

developer to put its application in the hands of someone representing the

Environment Branch and that “All that the condition requires is the delivery of the

application documents to the council whose obligation is then to have them

considered. Council's obligation of having the application documents considered is

easily overcome by placing them before the section of Council which at the time

bears the responsibility for such matters”: page 6.

[19] I agree with his Honour that approval from a section within Council “called other

than the Environment Branch” if complied with would produce “immunity from

prosecution”, in particular “approval being on Council letterhead and signed by

somebody from the Growth Management Branch or whichever Council department

was responsible for environmental compliance matters”.3 What concerned his

3 It proved surprisingly difficult to locate authority for this commonsense approach. My associate’s researches extended to changes that might be thought analogous in the spheres of international law and industrial law. As to the latter see IWA- Canada, Local 1-207 v Zeidler Forest Industries Ltd. [1988] Alta. LRBR. 182, a decision of the Alberta Labour Relations Board. The (employer) company challenged the standing of the union “local” to bargain on behalf of certain of its employees. As the headnote states in relation to a “s.135 application”: In 1987, the I.W.A. (the “International”) was dissolved and replaced by two national unions. As a result of this process, IWA-Canada Local 1-207 applied to be declared successor to IWA Local 1-207. The employer objected that the dissolution and replacement procedure was defective, IWA Canada Local 1-207 did not exist in law, and no one had succeeded the defunct IWA Local 1-207.” IWA Local 1-207 had held certificates for “bargaining units” of the company. The reasons for decision conclude: “The question, from the Board’s perspective, is whether there has been a change of significance in the constitutional or jurisdictional make-up of the Local. Where, as here, the constitutional identity of the Local remains unaltered; where in fact it is the same group or organization, albeit operating under a new name as a result of a change of parent, we see s.135 as having no applicability. We should note, however, that if this conclusion were wrong we would be willing, in this case, to grant a s. 135 declaration.

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Honour (page 7 of the reasons) based on Television Corporation was that the

Council “is prescribing the conditions of its own authority before it can prosecute

for non-compliance”. He also found (perhaps inconsistently) certainty “lacking from

the point of view that once the application and supporting documents pass over the

Council's front desk there is no distinct Environment Branch for it to go to”, but

doubted whether that was “sufficient to strike down the Condition”. See page 7. The

putative Environment Branch was seen as something of a loose cannon that might

decide the putative application from a developer contrary to Council policy, or

arbitrarily or capriciously - or simply not make a decision at all.

[20] The reference to policy is presumably to Exhibit 25, the Council's formally adopted

Local Planning Policy Significant Vegetation Areas (31 July 1996) which indicated

procedures to assist the Council to assess the potential impact of proposed

development on identified areas of significant vegetation, extending to submission

of an Environment Impact Study (EIS) including a Vegetation Management and

Retention Plan; the policy recommended that "pre-lodgement" enquiries be made of

Council by letter; indeed figure 1 was a comprehensive flowchart illustrating the

Pre-Lodgement Process for Applicants. The Policy provided for exemptions. Mr

Allan laid much emphasis on this Local Planning Policy, which he submitted ought

to have been incorporated by reference in Condition A12 to avoid uncertainty.

However, as we see it as inapplicable we believe the matter can be adequately dealt with as a simple change of name application…” See also Covington v Metropolitan District Railway Company [1903] 1 KB 231, 243-4 where Channell J said: “…what we have to find is who are the persons who now come within the description of “masters of the Supreme Court”, as used in the Act of 1985. This expression cannot mean merely the persons who in 1895 filled the office, nor can it depend upon the title, for the title might be changed from time to time, and in fact officers performing very dissimilar duties have at various times in the history of our Courts held the title of “master”. The expression “masters if the Supreme Court” in the Act of 1895 must therefore, I think, be construed to mean “ the persons from time to time filling the office now known and described as masters of the Supreme Court,” yet the statutes and rules quoted in the judgments of my Lord and my brother Wills shew that a Chancery taxing master is now a person who fills the same office and performs the same duties as at the time of the passing of the Act of 1895 were filled and performed by the persons then known as “masters of the Supreme Court”, and, consequently, he must now be considered as a persona designata directed by the Act of 1895 to tax and settle these costs.”

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[21] His Honour thought "uncertainty in application and operation" were "confirmed" by

clear evidence of past clearing of native vegetation without any written application

or approvals being granted; requests on occasion were made orally and Mr Birbeck

or Mr Milne subsequently supervised the clearing. Mr Birbeck conceded in cross-

examination "there was an election not to prosecute on one occasion because his

section was short staffed". I fail to see how such indulgences go any way at all

towards establishing uncertainty. I am acutely aware that all of the questions

confronting the court presently are to be resolved in the context of a company and

three individuals being proceeded against criminally and facing punishment upon

any conviction.

[22] If it matters, the present context is very different from that in Television

Corporation, where non-compliance with the new conditions (which Menzies J, for

one, did not find concerningly uncertain) might lead to loss of a licence to operate a

television station. Here, the company was faced by a condition (assuming for the

moment that the condition binds it) stating in the clearest possible terms that native

vegetation is not to be cleared. The condition made an exception where approval

was forthcoming. In respect of the clearing underlying the prosecution the company

(although it had sought other approvals) did not seek any formal approval or,

conformably with what had occurred in the past, invite Council officers to attend to

observe or supervise what was done (on the contrary, Council officers interested in

what was happening on the site were excluded). If there should be any uncertainty

about the condition, then (subject to there being uncertainty about what is “native

vegetation” which Mr Allan appeared to advance in supplementary oral submissions

following Mr Lyons' reply – transcript p 410 ff) the only uncertainty arguable

relates to the obtaining of the exemption. If uncertainty or other considerations lead

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to the processes for obtaining the exemption (approval) failing, then that would

appear to be the developer's misfortune: the condition forbids clearing unless some

sufficient authority for it can be got.

[23] My view is that we are in the realms of unrealistic speculation here. It was correctly

pointed out that it is not open to the Council to unilaterally change conditions to

overcome a difficulty;4 however, it was always open to the developer to apply to the

Council to have conditions changed to provide a workable process, if that were

necessary; the developer might have made an independent application under the

Policy, Exhibit 25, if appropriate. The aspects of finality and certainty which in

principle ought to characterise a development condition, if it is to be valid, are

closely related and unsurprisingly are likely to be dealt with together, as for

example in Mison v Randwick Municipal Council (1991) 73 LGRA 349, 352, 353

and 355, where Meagher JA asked, apropos a condition of “overall height of the

dwelling house being reduced to the satisfaction of Council's Chief Town Planner”:

“What does ‘height’ mean? From what point is it measured? And if one works out the answers to those questions, what does ‘overall height’ mean? ... How can one reach the result that the condition is certain?”

and in Fogg, Meurling and Hodgetts, Planning and Development Qld [4445] - [4450].

[24] In Mison, Priestley JA at 352 said that “what are finality and certainty for consent

purposes must be judged by a substance approach rather than the strict kind of

approach which requires absolute precision”. The outcome was that the Council’s

purported consent was declared not a consent to the developer's application. I have

no reason to doubt the authors’ assertion that there is no Queensland appeal decision

in which the requirement of certainty has been applied to invalidate a condition.

18

They quote a passage from Scott v Wollongong City Council (1992) 75 LGRA 112,

at 118-19, in which there was unsuccessfully impugned a condition which required

the applicant developer to carry out works specified in an attached document and

plan “subject to final determination by Council of that document and plan or the

relevant sections thereof”:

“. . . The principle of 'finality' is intended to protect both the developer and those in the neighbourhood who may be affected by the proposal, against the consent authority's reservation of power to alter the character of the development in some significant respect, thereby changing the expectations settled by the consent already granted. That consent may, of course, be subject to conditions; and those conditions are subject to the principle. However, it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or officer to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of the proposal with absolute precision. The present is just such a case. I agree with Mr Davison that the application and consent have finally resolved the particular use of the land and the specific character of the building; and the circumstances of that use have been substantially prescribed. But a number of matters ancillary to that use have been generally (although in some cases with a degree of precision) stipulated, with details left for later determination. Conditions 1, 4, 14, 16, 18, 19, 20, 21, 25 and 26, in addition to 27, fall within this category . These conditions differ as to the extent of the detail left to be settled, but arguably none of them is final. However, what distinguishes them is that the exercise of the decision making power they each contemplate will certainly not alter the development "in a fundamental respect", nor will the development be "significantly different" from that which the application for consent contemplated. They are all conditions which may be described as ancillary to the core purpose of the application. Moreover, in my view the attachment of conditions of this kind, which leave final details to be settled, should be approached with the degree of flexibility indicated, for example, by Pape J in Weigall Constructions Pty Ltd v Melbourne and Metropolitan Board of Works (1972) 30 LGRA 333. If I may quote the words of Barwick CJ in a somewhat

4 This is subject to submissions based on s 6.1.44 of the IPA.

19

different context in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437: - ‘No narrow or pedantic approach is warranted’. Although no question arises about the standing of the appellants which is secured by s123 of the Environmental Planning and Assessment Act, or their right to challenge this development, it is not beyond comment that it is the objectors who seek to assert the lack of finality in condition 27 and not the developer, the second respondent, whose task it is to carry it out.

I am therefore of the opinion that condition 27 is not void for want of finality and the suggestion that it was void for uncertainty or linguistic ambiguity was not pursued. I need not consider the question of severability. Similarly, Mr Parker adumbrated, but withdrew, an argument that condition 27 was beyond the first respondent's power to impose because it was not fairly or reasonably related to the development consent”.

[25] The court should be extremely careful about declaring invalid conditions along the

lines of A12 which are so commonly encountered in development approvals, with

possible ill consequences; for all that appears, the whole system might become

unworkable without them. The Magistrate's reference to A11 (which also refers to

"Council's Open Space and Landscaping Policies and Guidelines applying at the

time") inspired reference to the conditions generally – revealing several instances of

matters left for “later and final discussion”. They refer to "artificial wetlands being

designed, vegetated and maintained in consultation with and to the satisfaction of

Council's Environment Branch and Drainage Engineer" (what would happen if they

disagreed?) in A13, approval of the DPI (Fisheries) for approval of mosquito

control measures (A14), roadwork over Council's former sanitary landfill being "to

the satisfaction of Council's Chief Environmental Officer" (A15), approval of the

DPI for vegetation clearance below Highest Astronomical Tide (A18) - this last

became potentially pertinent to Mr Hickey's written request to the Council's CEO

(attention Cameron Milne) for permission to clear "the regrowth vegetation on the

future fairways of the un-constructed (back 9) of the Pelican Waters Golf Course" in

20

a letter of 25 May 2004 (at which time all concerned experienced no difficulty in

substituting the Department of Natural Resources for NRM&E as the case may be -

see Exhibits 33, 34 and 37). The Erosion and Stormwater Management Plan had to

satisfy Council's Development Engineer and Environment Officer (B8); an access

easement to facilitate Council's maintenance of the Esplanade was to be located “to

the satisfaction of Council's Environment Branch” (B9); the Branch was to approve

the Golf Course Management Plan (C10); aspects to do with carparking areas,

tennis courts and a night practice range creating potential noise or light nuisance

were to be handled “to the satisfaction of the Chief Environmental Health Officer”

(C4); the Council could agree to changes in the arrangements limiting hours of

maintenance which might produce noise (C6); Council's Development Engineer and

Environment Officer were to be satisfied with the Erosion and Stormwater Drainage

Management Plan (C8); food preparation areas and refuse container storage

arrangements had to satisfy Council's Health Branch (page 10(a)(b)). A noise

impact assessment was to be carried out to the satisfaction of the Chief

Environmental Health Officer (D3), who might agree to expanded hours for

activities such as delivery of fuel and stock and also the car wash and mechanical

workshop (D4, 5 and 6). Roads and bikeways were to satisfy Council's

Development Engineer (D7, 8); its Water and Sewerage Engineer was to approve a

treatment and recycling facility proposed for the car wash (D10). There are others.

[26] While one can understand the excitement that the supposed bombshell of the

disappearance of the Environment Branch represented during the trial, a matter

which did not of itself particularly concern the Magistrate, as I read his reasons, I

regard this as something of a false issue. Neither the defunct Environment Branch,

nor the replacement Growth Management Unit, nor any element of the Council's

21

administrative structures has any legal existence or personality, convenient as it may

be for the persons dealing with the Council to be in a position to deal with officers

assigned to them as directly and conveniently as possible.

[27] Among the authorities placed before the Magistrate was Caloundra City Council v

Minister for Natural Resources [2001] 1 Qd R 365, in which Wilson J said at 370:

“Of its nature, a local government must make decisions by resolution of the Council. Section 386 of the Local Government Act 1993 affords the mechanism for the appointment of a delegate ...”

[28] Her Honour determined there was no properly constituted delegate for relevant

purposes. I reject Mr Allan's submission that there ought to have been some formal

delegation to Environment Branch. One is familiar with delegations to named

individuals, which the Environment Branch never was. It has not been shown there

was any relevant function that might be delegated pursuant to relevant legislative

provisions. It seems to me inescapable that all approvals or decisions of any kind

entrusted to “branches” must be taken as Council’s decision, and that no more is

happening than identification for the convenience of Council and the developer and

anyone else concerned of the section, branch or designated officer likely to be

bringing thought to bear on the relevant issue(s). One can be certain that advice of

the determination (if written at all) would be contained in a formal letter on

Council's letterhead, committing the Council, as a determination by it. My

conclusion is the same, whether reached in a criminal context in which the criminal

standard of proof applies or whether the context is a civil one.

The Magistrate’s Treatment of the Delegation Issue

22

[29] After identifying uncertainty of condition A12 in its operation and application as a

factor in the mix, the learned Magistrate noted the defence application for the

proceedings to be stayed as an abuse of process, locating authority for his

jurisdiction in Williamson v Trainor [1992] 2 Qd R 572 and Doonan v McKay

[2002] QCA 514 at [12]. See page 8. He then turned to the grounds the defence

presented as impugning the prosecution’s conduct in a way that supported a stay for

abuse of process. I take it the grounds were added to the uncertainty identified. First

of them was lack of a delegation (or any proof of a delegation) of the Council’s

powers to its Environment Branch under s 8.7 of the Local Government (Planning

and Environment) Act 1990:

“Delegation 8.7 A local government may, by resolution, delegate its powers under this Act (other than a power that is required to be exercised by resolution) to- (a) the person who ordinarily presides at meetings of the

council; or (b) an officer or employee of the local government; or (c) a board or committee consisting of some or all of the

following- (i) councillors; (ii) officers of the local government; (iii) employees of the local government.”

[30] Here, his Honour was prepared to make an assumption that things had been done

regularly, albeit not recorded, and that there was a delegation to the Environment

Branch continued under s 6.1.47 of the IPA and:

“lawful while the Environment Branch was in existence. Once the Environment Branch was no longer a distinct section within the Council however there was no delegation to the Growth Management Section or any other branch of Council and anything purportedly done by someone with an assumed authority under Condition A12 would not be lawful”. (page 10)

23

[31] It is not clear to me whether this involved an assertion that the approval of 31 May

2004 signed on Council letterhead by Cameron Milne, Environment Officer for the

thinning of vegetation (Exhibit 36) pursuant to the “application” in the form of a

quotation by the contractor (Exhibit 35) was unlawful. Probably so. His Honour

went on to say that his reasoning “may well be academic as there was for the

Council’s part little adherence to the procedure required by A12”, presumably a

reference to its acting upon the informal requests. This issue was identified as one

falling “for consideration in the context of other matters raised” (page 10). My view,

as indicated, is that in legal reality it is the Council, as such, receiving applications,

considering them and making decisions under the Condition and that it is not to the

point that no delegation is established for purposes of a provision like s 8.7; it is not

possible to identify any “power … under (the) Act” that might be the subject of

delegation.

Were the Complaints Defective? – The Magistrate’s Approach

[32] There is no doubt that his Honour took the next defence point seriously. At page 10

he wrote:

“OMISSION OF ESSENTIAL LEGAL ELEMENTS OF THE OFFENCE FROM THE COMPLAINT A further submission of the defence was that ‘the deficiency in the complaints exists because essential legal ingredients are not averred on the complaints’. The prosecution has brought the charges against the two (2) corporations under S.4.3.3 of the Integrated Planning Act. The charge is ‘contravened a condition of a development approval’ which is the wording used in S.4.3.3 however A (12) is not a condition which came into existence under the Integrated Planning Act as it was made under the repealed Local Government Planning & Environment Act 1990. On the face of the complaint there is no apparent nexus between Condition A (12) and the offence under the Integrated Planning Act.

24

The defence contends that the deficiencies in the averment of the legal ingredients on the complaint include:-

(1) The complaint does not aver that Condition A (12) is a development approval. It avers that the ‘rezoning approval’ is a ‘development approval’; and

(2) The complaint does not aver that Condition A (12) is binding upon the original applicant’s successors in title.

Clearly in order to prove the charge the prosecutor would have to prove to the required standard both the matters referred to at (1) and (2) and to do so would have to have resort to S.6.1.23 (Continuing effect of approvals issued before commencement) and S. 6.1.24 (Certain conditions attach to land) of the Integrated Planning Act. Neither of those sections were however alleged in the complaint nor I should add was there any averment as to how Condition A (12) being a condition of a rezoning approval became a “development approval” as referred to in the charge. I agree with the defence submissions on this point that the complaints are legally defective by the omission of essential ingredients and I adopt the submissions made by defence counsel in that regard.”

No consideration appears to have been given to whether amendment of the

complaints could or should have been ordered under s 48 of the Justices Act,

assuming that they were deficient. This may well have been because of the

determination of Mr Myers of counsel, who appeared for Mr Lucy, not to seek any

amendment in the face of Mr Allan’s submissions. In the appeal, Mr Allan with

some justification relied on the doctrine that litigants ought to be treated as bound, in

particular, as bound in a subsequent appeal, by the way in which they chose to

conduct a proceeding. The situation under s 48 is in my opinion more complicated.

There is room for argument whether the command to the court by the use of the

word “shall” signifies that a proper request by the prosecutor for amendment must

be acceded to, or whether it signifies that it is incumbent upon the court to make

appropriate amendments, even against the prosecutor’s wishes. The latter alternative

places the court in the potentially invidious situation of formulating a complaint in

25

words that will serve best to secure a conviction. There is clearly a requirement that

the evidence is sufficient to support a conviction on the charge properly formulated.

There is authority supporting the view that the court has that onerous obligation,

including Griffith CJ’s judgment in Hedberg v Woodhall (1913) 15 CLR 531, a case

of alleged “duplicity” in which the defendant was charged with having “possession

or control” of undersized fish. The Chief Justice said at 536:

“When an information charges two offences, it is the duty of the Magistrate, if he thinks so, to tell the informant, and to inform him of his right of election, and ask him on which charge he desires to proceed. But in case of an illiterate or ignorant complainant (and I suppose there are many such), if he does not know what to do that would not, in my opinion, relieve the Magistrate from his duty to hear the evidence and form his own conclusion as to whether either of the offences charged is proved”.

Defective complaints and Informations – What Approach do the Cases Show?

[33] Earlier, in Kelly v Wigzell (1907) 5 CLR 126, the defendant tramway conductor was

charged with permitting more than the prescribed maximum number of persons to

travel in a tramcar in Melbourne Street, South Brisbane; the evidence showed that

police boarded the tram in “Victoria Place” (a short approach continuing Melbourne

Street to the bridge) and counted passengers while going across the bridge. It was

contended there was variance between complaint and evidence, although the names

described different parts of the same street. The Supreme Court confirmed the

Magistrate’s dismissal of the complaint on the ground there was no evidence that

any offence had been committed in Melbourne Street, as the passengers hadn’t been

counted until after the tramcar left that place. The High Court allowed an appeal. At

128, to a submission that no amendment was asked for in the Magistrate’s Court,

and none should be granted now, Griffith CJ said “Sec. 48 says that amendment

‘shall’ be made, and the Court will therefore regard the amendment as made”.

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[34] In Stait v Colenso (1902) 28 VLR 286 Williams J said at 288:

“Having regard to sec. 187 of the Justices Act 1890 I think it is not open to a defendant to take any objection to an information for any defect therein in form or substance. I think the utmost the defendant or his adviser in this case could have done was to point out this defect to the justices, and having done that the justices, who are to be presumed to know the law, should have decided there and then whether wilfulness was a necessary ingredient in this offence, and then, if they were of opinion that it was necessary, it was their duty to at once amend and insert the word ‘wilfully’, and proceed to try the case, and then say if the evidence was sufficient to support the charge. It seems to me to be perfectly plain when this objection was raised the justices ought to have amended the information whether the informant refused to amend or not. They ought to have said ‘We think it is necessary and we will amend.’ If a conviction had been made on the information as it stood, this Court on review would have looked at the evidence, and if it fitted the charge would have put the proceeding right. The case will be remitted to the justices, with an intimation of my opinion that the word ‘wilful’ should be inserted in the information, that the information is defective, that the objection is a good one, and that they should amend the information accordingly. What constitutes wilful negligence is a question of fact for them to decide.”

[35] These cases, and many others of interest can be found in the annotations to s 47 and

s 48 in Kennedy Allan, The Justices Acts (Qld) (3rd edition, 1956). I informed

counsel that I was consulting this helpful work, as was Williams J in Tunney v

Keehn, ex parte Keehn [1977] Qd R 6 at 10, having noted that the magistrate was

“required” by s 48 to amend the complaint if he felt there was any defect in it.

[36] No counterpart of those sections or Jervis’ Acts was available which might have

served to save the information held defective by majority of the High Court in John

L Proprietary Limited v Attorney-General (NSW) (1987) 163 CLR 508, the source

of principles as to the requirements of the process by which a summary proceeding

is commenced much relied on by Mr Allan by virtue of the application of them in

Marshall v Averay [2007] QPELR 137 at [4] [19] ff. At 528, Brennan J spoke of

saving the criminal law from “the reproach of being crippled by technicalities”. This

27

was in the course of a dissenting judgment. Toohey J wrote another. At 530,

Brennan J quoted Griffith CJ in Hedberg v Woodhall (1913) 15 CLR 531, 534-35 as

to the effect of the “Jervis Acts” which “did away with” …

“innumerable objections that could be taken in cases before Magistrates” to the effect that “if objections are taken which really do not go to the merits of the case the Magistrate is not to stay his hand, but to proceed to dispose of the case on the merits”.

The deficiency which the majority in John L held fatal to the information was failure

to state the respect(s) in which an advertisement offering 1,000 litres of free fuel to

anyone who purchased a car on the Australia Day weekend for over $3,000 (not

honoured for some such purchasers in the event) was false or misleading. The

majority were of the view that, for example, it might be appropriate to include

assertions about the company’s state of mind at the time of publishing the

advertisement.

[37] Toohey J joined Dawson J (part of the majority in John L) in dissent in Walsh v

Tattersall 188 CLR 77. In this case the majority (again reversing the final appellate

court of a State) identified duplicity as the fatal flaw in a count of obtaining

payments or benefits by dishonest means, construing the legislation as creating only

offences of dishonestly obtaining a single payment or benefit. Mr Walsh allegedly

obtained weekly payments over 13 months by dishonestly representing that a health

condition precluded him from working. The majority, who favoured allowing the

appeal, were concerned that there may have been active dishonesty in respect of

some of the single payments or benefits, but not in respect of others. The focus of

Mr Allan’s reference to Walsh was Kirby J’s description and justification at 110-12

of the course of High Court authority. What is said there is for the most part

pertinent presently, even though written about duplicity:

“The policy of precision in criminal pleading

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With all respect to those who are of a different view, I cannot agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. A strict approach has been consistently applied by this court from Johnson v Miller through Iannella v French and up to S v The Queen, the latter having been decided in 1989. Quite apart from the consistent application of the authority of this court, there are reasons of legal principle or policy which favour the approach of this court and which resist the approach which has apparently found favour in England and New Zealand. These reasons are: 1. Compliance with the rule of strictness is a correct practice to require of prosecutors. It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction. 2. The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller and restated in S v The Queen. The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence. It assists in decisions about how to plead. It clarifies contested questions about the admissibility of evidence relevant to the offences so specified. It contributes to accurate sentencing where a conviction is recorded upon those offences. It also avoids later problems with respect to pleas of autrefois acquit or autrefois convict. 3. Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon. Nowhere is this risk more evident than in cases of alleged sexual misconduct as illustrated by S v The Queen. But it is also a risk present in cases such as Weinel v Fedcheshen, this case and perhaps others. 4. In this case, as I hope I have demonstrated, the purpose of parliament in creating the offence under s.120 of the Act was to create a separate offence for each payment or benefit. From the point of view of the prosecution, the advantages of reducing the 30 separate charges which were originally foreshadowed by police to a single composite charge were clear enough. Proof of dishonesty at some stage in the receipt of a payment or benefit would then be likely to contaminate all other payments and benefits received. But that would divert the attention of the judicial officer deciding the case from considering an issue which would be presented clearly by individual counts but not so clearly by one “rolled up” count. That

29

issue is whether, at some stage, any dishonesty found on the part of the appellant was displaced by a mere passive payment of benefits by the Commission. If each payment and benefit had been separately charged, it would still have been open to the prosecution to suggest that an inference of dishonesty, proved beyond reasonable doubt, carried over from one early payment or benefit to those that followed. But at least the attention of the prosecutor, the accused and the judicial decision-maker would then have been focused upon each individual offence. I believe that that is what the Act required. Moreover, it was not irrelevant to the evidence adduced in the appellant's case, particularly having regard to his interview with the police in June 1993 and his statements acknowledging his fitness to work in July 1993 made to the Commission's medical adviser. Because a “rolled up” single count was charged, none of these issues was specifically addressed. The outcome of the prosecution might have been the same. But the process would have had the necessary integrity. 5. A holding which would diminish the stringency of this court's past authority would encourage imprecision in criminal pleading where precision is desirable. It would condone a slackness in the pleading of criminal charges which this court has hitherto rejected. It would substitute pious words for a strict legal practice which the courts uphold. As this case demonstrates, precision is often needed because the point is not immediately seen by the accused or those representing the accused. Not all accused are legally represented. Those who are may not be adequately represented. The availability of legal representation in cases involving offences such as those charged here may decline with other demands on public legal assistance. It is therefore desirable that this court's instruction should be addressed to the practices of prosecutors and to the attention of judicial officers.”

[38] Ianella v French and S illustrate the familiar pattern of the High Court differing

from the State appeal court and division of opinion among the High Court judges. In

the latter, the generalised evidence of incidents of sexual impropriety could have

referred to any of the three offences charged; in the former, the duplicity (not

concerning to McTiernan J) arose where a landlord was charged and convicted on

appeal to a Supreme Court judge with having ‘wilfully demanded or wilfully

recovered as rent’ a sum by statute irrecoverable: the problem was that as the charge

alleged two offences in the alternative, it was impossible to say of which offence the

appellant had been convicted, as in R v Disney [1933] 2 KB 138.

30

[39] (I found reference to the New South Wales cases mentioned by Kirby J in Walsh

helpful. In Hamzy (1994) 74 A Crim R 341, where the court did not find duplicity,

considerations of “what is fair in the circumstances” are a theme visited at numerous

pages of the reasons, commencing at 346; see also 348, 349, 350. An aspect of

fairness is that the accused know “the case which he has to meet” (347). Gleeson CJ

in Stanton (1990) 19 NSWLR 656 at 672 in an instructive passage said:

“there is a high risk that, unless proper attention is given to the matter of particulars, the case against the appellant may be put and dealt with in a manner which fails to face up to the detail of the charges against him and which, from his point of view, makes those charges extremely difficult to defend. A reading of the transcript of the committal proceedings indicates that the prosecutor has never properly addressed the task of specifying the allegedly false evidence, or the material particulars in which it was false, and when proceedings in this Court were instituted, the committal proceedings had reached the stage where the defendant was about to be forced to deal, with a crown prosecution case that had never been properly particularised. This would have constituted a denial of natural justice. It is apparent that Yeldham J was fully aware of the difficulties, but his Honour was content to deal with the problem by making the observation that the prosecution was obliged to provide further particulars to the appellant, apparently proceeding upon the assessment that such particulars would be provided before the committal proceedings are commenced. I consider that the appellant was entitled to have the matter dealt with in a more formal manner. I have a strong impression that there has to date been a lack of understanding on the part of the prosecution as to the nature of the particulars with which the appellant is entitled to be provided. I also have in mind that the learned magistrate had apparently evinced an intention to go ahead with the proceedings in the absence of what I would regard as appropriate particulars. In my view this Court should declare that the appellant is entitled to the further and better particulars requested in the letter dated 17 December 1987 from the appellant's solicitors to the second respondent concerning the charge of giving false evidence. It is implicit in that declaration that I am of the view that no proper response to the request for particulars has yet been given and, additionally, that if an attempt were made to proceed further with the committal proceedings in the absence of such particulars this Court if necessary would intervene.”)

31

[40] Kirby J proceeded to note the appellant Walsh’s lack of merits, excepting legal

merits, in an observation which could be made in a number of these cases, including

Johnson v Miller 59 CLR 467, seventy years ago. There (Latham CJ dissenting in

support of the errant intermediate court) the prosecutor was blamed for the fatal

deficiency: the relevant offence depended on showing a single entry to or egress

from licensed premises during certain hours; after particulars had been given that 30

“patrons” had been observed (the identities of four of whom were known),

replacement particulars were confined to but one unidentified patron. It was held

unfair to the defendant to leave him uninformed of which of the events earlier

particularised constituted the count he faced. Among the considerations was that

“the defences open to the licensee depend on the purpose of the individual

concerned or the manner and circumstances of his obtaining entrance”, as noted by

Dixon J at 490. Gleeson CJ gave extensive consideration to the judgments in

Johnson v Miller in Stanton v Abernathy (1990) 19 NSWLR 656 at 668 ff. There

was duplicity in a charge of knowingly giving false evidence because particulars

had been given in terms of a subject matter, when as a matter of law each false

statement involved a separate crime (“common sense and fairness will determine

how many statements ought to be taken to have resulted from a number of

utterances”). The rationale for the High Court’s strict approach includes informing

the court of the identity of the offence – per the majority in John L at 519, where it

was said that Jervis’ Act did not abrogate the requirement that a valid information

must at least identify the essential factual ingredients of the actual offence.

[41] Thus in Alwer v McLean (2000) 116 A Crim R 364; [2000] VSC 396 (discussed at

length elsewhere in these reasons), on which Mr Allan relied, the defendant was not

informed whether his allegedly exceeding 60 kilometres per hour on a named

32

stretch of road was on a highway in a built-up area under one paragraph of the

offence-creating section or in a speed zone under another paragraph.

[42] In Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181 the missing information did

not lead to all 96 of the permutations and combinations available under s 53(c) of

the Trade Practices Act 1974 (Cth) being open, but more were open than a single

one, as the court considered necessary if the relevant information and summons

were to be sufficient. Amendment was considered inappropriate after the 12 month

period allowed for bringing such charges had expired.

[43] In this court, in Marshall v Averay [2007] QPELR 137, in a proceeding under

s 4.3.5 of the IPA, the complaint was defective because it did not indicate whether

“lawful use” was used with its general (dictionary) meaning or, as might have been

expected, the special meaning under s 1.3.4; knowing the effect of the latter

depended on whether certain facts existed; the complaint did not include the

relevant details.

[44] Reliance was placed by the respondents in this appeal on Hornsby Shire Council v

Winsloe (1998) 101 LGERA 117, where Bignold J said at 134-5:

“It is to be recalled that the offence as formulated in the summons is in the following terms:

‘… commit an offence against the EPA Act 1979, section 125, whereby the defendant … cut down and/or removed … trees contrary to the council’s tree planting preservation order created pursuant to clause 8 of the Hornsby Shire Local Environment Plan 1994.’

A number of comments concerning this formulation of the offence should at once be noted: (i) it does not adopt the language of s.125(1) of the EPA Act,

indeed, it bears little similarity to the text of s 125(1);

33

(ii) it does not specify the precise nature of the relevant ‘prohibition’ other than by virtue of its statement that the defendant’s acts were ‘contrary to’ the TPO; and

(iii) it does not specify whether the relevant ‘prohibition’ is ‘by or under this Act’ except for saying that the defendants’ acts were ‘contrary to’ the TPO.

It is apparent from the formulation of the offence that the relevant prohibition is not that contained in s.76(2) of the EPA Act. It follows that the charge is not of an offence in relation to a prohibition made ‘by the Act’. Is it a charge of an offence in relation to a ‘prohibition under the Act’? In terms, the formulation speaks of ‘contrariety’ to the TPO. Assuming in favour of the prosecutor that such contrariety may imply the existence of a relevant ‘prohibition’ it is apparent that the source of that prohibition, as formulated in the charge, is the TPO. Is that relevantly a ‘prohibition under this Act’ within the meaning of s.125(1) of the EPA Act? In my opinion, it is not, for it is apparent that the prohibition contained in cl 1 of the TPO is a prohibition in an instrument made under cl 8 of the LEP which is itself made ‘under the Act’. In other words, as the TPO is the impliedly averred source of the relevant ‘prohibition’ it is not a prohibition ‘under this Act’ within the meaning of s.125(1). Rather, it is a prohibition ‘under’ the TPO made ‘under’ the LEP made ‘under’ the Act. It follows that the charge does not charge an offence under s.125(1) of the EPA Act because the relevant ‘prohibition’ is not a prohibition ‘under this Act’ within the meaning of that section. For the reasons I have earlier given, the charge could have stated as a relevant ‘prohibition’ that contained in s.76(2) which qualifies as a prohibition ‘by this Act’, and possibly the prohibition contained in cl.8 of the LEP which may qualify as a prohibition ‘under this Act’, but it has not done so and in failing to do so, it has omitted an essential legal ingredient or element of the offence created by s.125(1) of the EPA Act.”

In a helpful passage at 138, Bignold J said:

“In my judgment, it is settled by authority, that s.43 of the LEC Act cannot cure the defect I have found in the present charge. That is not a defect in want of essential factual ingredients. It is a want of essential legal ingredients.

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Moreover, the implicit averment in the charge, of the prohibition contained in cl.1 of the TPO cannot be regarded as a factual allegation that is ‘wrong’ ‘surplusage’ or ‘irrelevant’ (all of which defects would be curable by s.43 (see Cooper (at 133)) because to so regard the charge would be to deprive it altogether of an essential legal ingredient of the offence, namely a relevant ‘prohibition’, since I have already held that the bare allegation of an offence against s.125(1) does not satisfy the requirements of the criminal law that a charge specify all legal ingredients of the offence. Is the defect in the charge capable of amendment? In Chenoweth (at 601) Dixon J discussed the question whether an information disclosing no offence can be amended. After noting a difference of judicial opinion on the question, Dixon J discussed the question in the following passage (at 601):

‘Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.’

In the present case, my consideration of the legal insufficiency of the charge would align it closer to the former end of the spectrum suggested by Dixon J.”

[45] In my opinion, the decisions discussed above do not reveal a disposition in the

courts to thwart prosecutions on technical grounds. Differences among judges as to

what is a technicality seem to be frequently exposed; to an extent these may

coincide with differences regarding the fairness of a criminal proceeding to the

defendant. In each case, in my view, some identifiable unfairness or potential

embarrassment to the defendant has been identified. I can identify nothing along

those lines to assist the defendants in the present matter. They assert that nothing is

needed, that the complaints against them are defective beyond saving by the Jervis’

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Act provisions available in the Justices Act. Before this court, Mr Allan’s

submission was that:

“the complaints were defective for want of averment of essential legal (and/or factual) elements … The learned Magistrate … was required, as a matter of law to strike out the complaints … an order permanently staying the complaints is premised on the fact that the complaints are valid. As the complaints omitted essential legal ingredients (and/or essential factual particulars), then without any amendment to cure those defects, the learned Magistrate did not have jurisdiction to order a permanent stay”.

[46] The argument ran that the complaints were so flawed that there was nothing of

sufficient validity to be amended; alternatively that given the time that has elapsed

since the date of the alleged offences (21 July 2004) and the limitation period in

s 4.4.2 of the IPA of (a) within one year after the commission of the offence; or (b)

six months after the offence comes to complainant’s knowledge, no amendment

should now be contemplated. Reliance was placed on the judgment of Sperling J

(Meagher JA and James J concurring) in Taylor v Environmental Protection

Authority (2000) 113 LGERA 116 at 125; there it was said that:

“to be valid, an information must identify the essential factual ingredients of the offence charged … a distinction has been drawn between ‘the essential factual ingredients’ (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence”.

On the following page this was said:

[23] The summons in the present case does not specify the essential ingredients of the alleged offence. It specifies the legal elements of the alleged offence, but it does not specify the acts or omissions by which the appellant is alleged to have carelessly disregarded the instruction on the container. In particular, it does not specify whether the pesticide is alleged to have come into contact with a mattress (or mattresses), bedclothes or clothing, nor does it specify in what manner (that is, by what acts or omissions) the appellant is alleged to have allowed the pesticide to come into contact with such item or items.

[24] Question 3(a) should accordingly be answered ‘Yes’.

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Question 3(b): If the answer to 3(a) is ‘YES’, are the proceedings void?

[25] … [26] A distinction is drawn between informations which fail to

specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision … Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars – such as the time, place, or the matter of the offence – a Lord Jervis provision will operate.”

In Taylor, the matter was remitted to the Land and Environment Court of New South

Wales in the expectation that amendments would be made to permit the prosecution

to go ahead.

[47] Cases can be found in which the prosecution does not obtain such an indulgence, in

which a misstatement of the offence has been fatal. A local example is Barnes v

Cameron; ex parte Cameron [1975] Qd R 128, decided on 25 May 1973. Mr

Cameron was charged that on 8 August 1971 he “not acting under the authority of a

permit issued under the ‘Green Island Jetty Regulations’ did amplify words by the

use of an apparatus namely a loudhailer contrary to the Act is such case made and

provided”; the regulation made it an offence, except under the authority of a permit

to “amplify or reproduce any words, music or other sound whatsoever by means of

any electrical or other mechanical appliance, apparatus or device”. The objection

was made (134) that Mr Cameron “was charged with an offence not known to the

law”. His counsel contended that the complaint ought to have alleged that the

apparatus used was an “electrical or other mechanical” one; the prosecutor applied

for an amendment under s 48 of the Justices Act, which the Magistrate refused

37

(considering it unnecessary), proceeding, after hearing the evidence, to a conviction.

The Full Court professed confusion as to what “loudhailer” connoted at 131.

Although the Concise Oxford Dictionary had an entry reading “loudhailer,

apparatus that converts electrical impulses into sounds loud enough to be heard at

some distance”, no such meaning of the two words used in conjunction appeared in

either the Oxford English Dictionary or the SOED, from which Lucas J derived the

meaning of “a person who calls to a ship from a distance, in order to attract

attention in a strongly audible manner” and observed that “such a person [may not]

require an electrical or mechanical device in order to perform such an activity”.

“Loudhailer” was seen as “apt to describe an ordinary megaphone, which being

merely a piece of material fashioned roughly into the shape of a cone, could not …

be described as either electrical or mechanical”. Mr Cameron “has had recorded

against him a conviction of an offence which does not exist”.

[48] The Magistrate having refused any amendment, the Full Court did not proceed, as

had Griffith CJ, to treat the amendment as made. Rather, it proceeded to consider

whether the Full Court had jurisdiction to amend (at 132), finding the matter

doubtful, as Dixon J said it was in Broome v Chenoweth (1946) 73 CLR 583, 601.

Lucas J at 134 said:

“But it is not necessary to decide that question, for, even if one assumes that the Court does now enjoy such a power of amendment, I would not be in favour of exercising it in the present case. The defect in the complaint seems to me to have the result that the offence with which the appellant was charged was not clearly indicated in it, particularly as it did not allege that the apparatus was either “electrical” or “mechanical”; it was incumbent upon the prosecution to rely upon one or the other, or both, in the case of an apparatus which could properly be described as being both electrical and mechanical; the defect does not seem to me to proceed from some slip or clumsiness, but to consist in the omission of an essential ingredient; as the evidence came out before the stipendiary magistrate the defect was capable of being cured, and the stipendiary magistrate was asked to cure it but refused to do so. For this Court to

38

cure the defect in these circumstances would seem to me not to be in the interests of justice; it would be to raise a new allegation of fact. I am fortified in this conclusion by the consideration that counsel for the respondent did not argue that the stipendiary magistrate should have ordered the complaint to be amended, nor did he ask this Court to order an amendment; he preferred to rely upon the proposition that the description of the apparatus in the complaint as a “loud hailer” provided all that was necessary in the averment of the essential ingredients of the offence. My brother Matthews has suggested that there is another strong reason why an amendment should not be allowed in this case, and I respectfully agree. The complaint alleged an offence by the applicant on August 8, 1971; the stipendiary magistrate’s decision was given on June 28, 1972. To require the applicant now to face further proceedings in respect of an alleged offence which is said to have occurred 21 months ago, and which on the face of it would seem to relate to an activity not of a particularly heinous nature, would be to defeat the object of s. 52 of The Justices Acts, which provides a limitation period of one year for complaints of simple offences. For these reasons, the conviction and order of the stipendiary magistrate should be set aside and an order should be made dismissing the complaint. The applicant should have the costs of the appeal.”

Matters Contended to be Missing from the Complaints

[49] The defendants here do not have the argument based on triviality, but I suppose they

have one equally as strong based on delay. It is unnecessary to trouble further about

this, as I do not share the same difficulty as did the learned Magistrate, who was

persuaded by Mr Allan’s submissions (Exhibits 81 and 82 before him) that essential

legal ingredients were missing from the complaint. Reference to the exhibits shows

the deficiencies were:

(1) The complaint does not aver that Condition A12 is a “development

approval”. It only avers that the “rezoning approval” is a “development

approval”.

(2) The complaint does not aver that Condition A12 is binding upon the

original applicant’s successors in title.

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The submission went on:

“32. The nature of the deficiencies in the averments on the complaints is highlighted by posing the following questions which cannot be answered by recourse to the averments on the complaint:

(1) Is Condition A12 a ‘continuing approval’ under s

6.1.23 of the IPA which is to have effect as if it were a ‘development approval’? Alternatively, does it satisfy the definition of ‘development approval’ in Schedule 10 of the IPA or s 4.3.3(4) of the IPA?

(2) Does s 6.1.24(1) or s 6.1.24(2) (or both subsections) of the IPA establish the connection between the current landowner’s obligations and the approval granted to another entity under the repealed LGPEA?

33. It can be readily seen from the foregoing submissions that

the observations of Smith J in Alwer v McLean which were referred to earlier are directly applicable to the defects in the complaints. The complaints, in the forms they were laid, are defective because the Court and the Defendants are required to analyse the relevant, related and essential provisions in the IPA (ss6.1.23 and 6.1.24) ‘… to establish all the elements of the offence to be proved.’

34. The necessary averments omitted from the complaints in

respect of s.6.1.23(1)(d) and/or s.6.1.324(1) and/or s.6.1.24(2) [the Defendants cannot say precisely which sections the prosecution relies upon] are averments of law. As was observed by Macrossan J in Macarone in respect of the corresponding provision of the now repealed Local Government Act 1936, [s 33(1A)]:

‘It is difficult to image something which would amount more to an allegation of law than an allegation that some activity, is by virtue of a statutory provision, lawful or unlawful.’

[50] The learned Magistrate agreed with those submissions (page 11):

“Clearly in order to prove the charge the prosecutor would have to prove to the required standard both the matters referred to at (1) and (2) and to do so would have to have resort to S.6.1.23 (Continuing effect of approvals issued before commencement) and S.6.1.24 (Certain conditions attach to land) of the Integrated Planning Act. Neither of those sections were however alleged in the complaint nor I should add was there any averment as to how Condition A (12) being a condition of a rezoning approval became a “development approval” as referred to in the charge.

40

I agree with the defence submissions on this point that the complaints are legally defective by the omission of essential ingredients and I adopt the submissions made by defence counsel in that regard.”5

[51] I have the misfortune to disagree with his Honour. In my opinion, the charge as

stated against OCC Holdings that it “contravened a condition of a development

approval” satisfies the requirement of s 47 of the Justices Act. I read subsection (1)

of s 4.3.3 of IPA, which is inelegantly expressed, as supplying its own inclusive

definition, to the effect that “development approval includes any condition in a

development approval”. Assuming, for the sake of argument, that there can be some

5 He went on, in his reasons of 24 October 2006:

“CONCLUSION – APPLICATION TO STAY I have found that there is uncertainty in the operation and application of the condition, that there is no delegation as was required by S.8.7 of the repealed act to any other person or entity standing in the place of the Environment Branch from the time of its abandonment and that there are omitted from the complaints essential legal ingredients and there is one more comment I would like to make. I return to the objection to the words in the particulars, “or any approval at all” and in that regard I extract a quote from McKay v. Doonan [2005] QDC 311 at paragraph 25

‘If the language of the statute remains ambiguous or doubtful, the uncertainty should be resolved in favour of the subject by refusing to extend the category of criminal offences. As Gibbs J said in Beckworth v The Queen (1976) 135 CLR 569. at 576:

“The rule formally accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful, the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.”

I accept that the uncertainty found in this condition is not that the meaning is ambiguous or doubtful but by particularising that

‘The defendant did not seek the prior written approval of Council’s Environment Branch or any approval at all’

the further allegation of not seeking any other approval is a particularisation of an offence that does not exist. In that regard I refuse to extend the category of criminal offences as referred to above by allowing the substitution for that approval which was impossible to obtain (that of the Environment Brach) by an alternative means of approval. In the circumstances after a consideration of factors referred to in the last paragraph extracted from Doonon v. McKay I can indicate that I intend upon making of a formal order that the prosecution be permanently stayed.”

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contravention of a development approval which is not a contravention of a condition

in a development approval, the drafter of the charge might have risked running into

the “demanding or recovering” excessive rent trap, on the respondents’ strict

approach. References to s 6.1.23 are a red herring. Subsection (1) describes the

scope of the section, which picks up certain matters under s 4.1(5), s 4.15, and the

“approvals” under former planning schemes or the Building Act 1975 referred to in

paragraphs (d) and (e). Subsection (1) of s 6.1.24 is, likewise, totally irrelevant;

however, subsection (2) of this later section applies:

“(2) Also, if an application to amend a former planning scheme was, or the conditions attached to an amendment were, approved under the repealed Act or under section 6.1.26 and conditions in relation to either amendment were attached to the land under the repealed Act or section 6.1.26- (a) if the approval was given before the commencement

of this section—the conditions remain attached to the land on and from the commencement of this section and are binding on successors in title; and

(b) if the approval was given under section 6.1.26—the conditions remain attached to the land on and from the day the approval was given and are binding on successors in title.”

[52] “Rezoning approval” is an apt description of the Caloundra City Council’s

resolution of 5 December 1996 formally advised in its letter Exhibit 2 that the

addressee’s “Combined Application to rezone and subdivide land be approved

subject to the following conditions…”. Given the date, this necessarily occurred

under the “repealed Act”, being the Local Government (Planning and Environment)

Act 1990 which is nowhere mentioned in the complaint as particularised. The

complaint by its heading directs the reader to s 4.4.3 of the IPA. Further down, the

document is correct in identifying subsection (1) as creating the offence charged

against OCC Holdings. Given that s 4.3.3 contains in subsection (4) a definition of

“development approval” for subsection (1) apt to include the “rezoning approval”

which came about under s 4.4(5) of the repealed Act, pursuant to an application for

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rezoning under s 4.3, there is no reason to refer to the definition of “development

approval” in schedule 10 of the IPA; this is in terms of a “decision notice” or

“negotiated decision notice”, neither of which can sensibly be applied except in

respect of development applications made under the IPA. As to deficiency (1),

Condition A12 is sufficiently clearly particularised as the “condition” founding the

complaint.

[53] As to deficiency (2), it is true that, reading the particulars, one finds a condition set

by the Council, self-evidently in the context of transactions involving “the

applicant”, purporting to affect “subsequent owners”, something not ordinarily

possible unless special circumstances exist. Pelican Links Pty Ltd, which allegedly

caused or permitted OCC Holdings “to implement the development on the subject

land” is said to be a “subsequent owner” of it. The defendants’ contention was and

is that the complaint ought to have spelt out the statutory provision which caused

Pelican Links to become bound. Patently, the reason for doing so was to bind

Pelican Links, for purposes of the complaint against it, to bear the consequences of

what OCC Holdings did on the land. This seems to have led to the inclusion in the

other complaints of some particulars which may not have been strictly necessary: in

the OCC Holdings complaint, (4) and (5). The reason is that the proscription in

s 4.3.3(1) of the IPA applies to a “person” in general, that is to any person at all.

Oddly, there is scant authority bearing on this important question. Mr Allan’s

argument I take to be that only those persons specifically rendered responsible for

complying with “a development approval including any condition in the approval”

by the IPA or other legislation face potential criminal liability if there is a

contravention. The point of bringing in subsequent owners, for example, is to

identify them as persons who may potentially face prosecution under s 4.3.3(1).

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There is no reason to think that provisions such as s 6.1.24 or s 3.5.28 regarding

successors in title from the point of view of getting them bound, serve to absolve

anyone else from what would otherwise be their obligations. See Hawkins & Izzard

v Permarig Pty Ltd [2001] QPELR 423, 429. It would be highly inconvenient if

contraventions of development approval conditions by persons generally could not

be prosecuted. There appears to be no definition of “occupier”, as mentioned in

s 3.5.28 and elsewhere in the IPA, to clarify the status of some entity like OCC

Holdings carrying out activities on a site in the short term, or to clarify the status of

squatters or trespassers who may commit development offences by using someone

else’s land for purposes such as a market or noisy entertainment – which one may

theorise could in some cases represent contravention of a development approval

condition. What would be the position of a truck driver breaching curfew conditions

imposed in the approval of a shopping centre by making out of hours deliveries or

removing rubbish out of hours? Mr Allan submitted that s 7 of the Criminal Code,

which has been held to be of general application, applicable to all offences created

by whatever legislation: Smith v Trocadero Dansant Ltd [1927] St R Qd 39; Wilson

v Dobra (1955) 47 WALR 95 is the means by which persons other than the owner

or subsequent owner may be implicated as principal offender: in other words, none

of his clients could have committed an offence unless Pelican Links did. I reject that

approach and would give “a person” in s 4.3.3(1) its ordinary meaning.

Significance of These Proceedings Being Criminal

[54] One of the difficult aspects of this case is its criminal nature. The matter which went

to the Court of Appeal on appeal from Judge Robertson, even if premised on some

notion of an offence being committed, was civil in nature. Odd as it might seem for

44

the interpretation of some statutory provision or administrative instrument to vary

depending on whether the exercise and interpretation is occurring in “crime” or in

“civil”, the decision of the New South Wales Court of Criminal Appeal in Neil

Pearson & Co Pty Ltd v Comptroller-General of Customs (1995) 127 FLR 350 is

instructive. The head note is:

“The appellants were convicted in the Local Court of offences against s 234(1)(d) of the Customs Act 1901 (Cth) relating to the tariff payable on certain washing machines imported by the company. The capacity of the machines affected the tariff. The prosecution relied on averments as to the weight capacity of the machines. There had been proceedings in the Federal Court between the parties regarding the same washing machines, on appeal from the Administrative Appeals Tribunal, in which findings were made about the tariff classification of the machines. During the hearing of the appeal against the convictions to the District Court, Hoskins DCJ indicated that he proposed to follow the decisions of Wilcox J and the Full Federal Court regarding the proper classification of the machines. The respondent argued that the Full Federal Court decision was binding on the issues of tariff classification, and that to permit a challenge to those decisions would be an abuse of process of the Court. Held, answering two of the four questions stated for determination and returning the proceedings to the District Court: (By Kirby A-CJ with whom Allen and Dowd JJ agreed) (1) The determinations in the Federal Court should not be considered conclusive decisions in rem so that they could be applied of their own force and as a matter of law in the criminal proceedings against the appellants in the District Court. (2) Hoskins DCJ was perfectly entitled to follow the decisions so long as he appreciated that he was not required to do so, and so long as he appreciated the different evidentiary environment in which the Federal Court judges reached their conclusions. (3) An averment must allege the facts necessary to establish the offence and must completely and concisely set out the relevant evidence. The legal interpretation of the facts must be left to the court. (4) Hoskins DCJ did not err in holding that s.234(1)(d) of the Customs Act created an absolute offence.

45

Sternberg v The Queen (1953) 88 CLR 646 at 651; Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133 at 143; Davidson v Watson (1953) 28 ALJ 63 at 64, followed. Discussion by Kirby A-CJ, of the principles of res judicata and abuse of process, followed. STATED CASE This was a case stated during the hearing of appeals to the District Court against convictions in the Local Court for offences against the Customs Act, regarding the application of the doctrine of estoppel to the prosecution, the validity of averments relied on by the respondent in the criminal proceedings, and whether the offences were absolute.”

[55] Mr Lyons QC, for Mr Lucy, drew to my attention what Smith J said in Australian

Crime Commission v Magistrates Court of Victoria (Melbourne) [2007] VSC 297:

“‘Thus prior to the challenge to the subpoena in the present committal proceedings, Brereton had sought to challenge the validity of each of the examination summonses directed to him. The material sought under the subpoena in the criminal proceedings was directed to the issue of the validity of the third examination summons. The issue relied upon in the challenge to the validity of the summons in the criminal proceedings had not been raised in any of the Federal Court challenges to the validity of the three examination summonses.’

Returning to the argument advanced for the ACC, it is in my view a remarkable argument. It assumes that estoppel principles developed in the common law for civil proceedings have an application in criminal proceedings. Counsel was unable to refer me to any authority that supported such an extension of the law. It would be surprising if there were when regard is had to the different nature and purpose of civil and criminal proceedings and the special position of an accused person in a criminal proceedings. Such authority as there is in the area supports the conclusion that it is inappropriate to apply such civil doctrines to criminal proceedings.”

[56] The court was referred to some cases illustrating difficulty encountered in enforcing

development approval conditions. In Hillpalm Pty Ltd v Heaven’s Door Pty Ltd

(2004) 137 LGERA 57; [2004] HCA 59, a right of way was required to be provided

as part of an approved subdivision as part of a planning permission given in the late

1970s. Relevant plans of subdivision and re-subdivision were registered without the

46

right of way ever being provided. In 1998, the appellant purchased its lot, across

which the proposed right of way extended. A neighbouring owner obtained against

it in the Land and Environment Court of New South Wales a declaration that the

appellant was in breach of a condition of the development consent and orders

requiring creation of the right of way, registration of an appropriate easement on the

title and construction of a carriageway at least 2.5 metres wide. At 71, the majority

said:

“[42] No doubt, as counsel for the respondent pointed out, ‘development’, as used in the EP&A Act, could refer to the subdivision of land, the use of land or to both subdivision and use. It by no means follows, however, that a person occupying a lot in a plan of subdivision carries a development out on the land by simply occupying the land. Where, as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not ‘carry that development out’ by occupying, and thus using, one of the lots in the subdivision.

[43] It follows that, even if there was a relevant condition of the

subdivision concerning the creation of a right of way, the appellant did not contravene s.76A of the EP&A Act by using the land without creating that right of way. It did not breach s76A because it did not carry the development of subdivision out on the land.”

Another issue in the High Court concerned the indefeasibility of the appellant’s clear

registered title. No complications along those lines attend this matter.

[57] The Magistrate’s ruling confirmed that the evidence was sufficient to prove that

OCC Holdings cleared native vegetation on the relevant site.

[58] In Barklay v Wollongong City Council (2005) 139 LGERA 167 there was a similar

condition which the Council sought to enforce against the original development

applicants 10 years later, when the specified work had not been completed. The

applicants successfully appealed against a compliance order, whose terms were held

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so uncertain that it was unenforceable; the Council also confronted evidentiary

difficulties in attempting to prove that the development consent had not been

complied with.

The Court of Appeal’s Decision

[59] The impact of Condition A12 upon the ability of the owner or others to carry out the

development contemplated in the “rezoning approval” of 5 December 1996 was a

matter of sharp contest, the appellant contending that frustration in obtaining

Environment Branch approval would preclude achievement of essential parts of the

proposal. It is plain that use as a golf course requires that the playing areas be

cleared. The 21 July 2004 clearing was the basis of the Council’s application to the

Planning and Environment Court for declarations against OCC Holdings Pty Ltd

and Pelican Links Pty Ltd that the clearing was unlawful and a development offence

within s4.3.3 of the IPA and also “injunctive relief”. Judge Robertson’s reasons,

reported at [2005] QPELR 126 at [45] and following deal with the companies’

argument that Condition A12 was invalid either for lack of finality or for

“significantly altering the development in respect of which the development

application is made”. The submission failed, as it did the companies’ appeal,

Caloundra City Council v Pelican Links Pty Ltd [2005] QCA 84. Crucial to the

Court of Appeal’s decision was adoption of “unchallenged” evidence that “prior to

April 1995, a major clearing of most of the area the subject of the 1996 rezoning

decision had been effected by the original owner so that the only areas of vegetation

which remained were kept by the original owner for their environmental and

aesthetic values, and for buffering and site management purposes”: see [7]. The

companies’ primary contention in the Court of Appeal was “that the restrictions

48

imposed by Condition A12 were void because they were apt to suspend, or detract

from, the use rights conferred by the rezoning approval”: [15]. In reasons concurred

in by the other members of the Court, Keane JA said:

“[18] The arguments developed in this Court have undergone some refinement since the proceedings before the primary judge. Stripped to its essentials the applicants' first argument is that condition A12 is apt, potentially at least, to suspend or preclude the exercise of the land use rights conferred by the rezoning approval. This is said to be because condition A12 was, by reason of the width of its terms, understood without reference to the physical state of the site when the rezoning approval was granted, apt to prevent completely the use of the land permitted by the rezoning in the form proposed at the time of the rezoning approval. The applicants' alternative argument is that, even if regard may lawfully be had to the state of land as at the time of the rezoning approval, condition A12 was still void because of its potential to affect the use of Lot 65 in the future for some of the possible forms of use permitted by its zoning. It is possible, so the argument goes, that any one of the possible forms of permitted use might require the removal of native vegetation, including regrowth from earlier lawful clearing. If condition A12 means that any one or more of the possible forms of use in accordance with the zoning at any time in the future might be confronted by the restriction on clearing in condition A12, then the condition must be void because it is apt to deny the use of the land permitted by the rezoning. I shall consider these arguments in turn.

[19] As to the applicants' first argument, the respondent points

out that, when condition A12 restricted the clearing of native vegetation on the "subject development site" as a condition of the rezoning in 1996, it was speaking of the site as it was when that rezoning approval was granted. In this regard, the uncontradicted evidence shows that the site had been cleared of vegetation to the extent necessary to facilitate the development effected pursuant to the rezoning approval and Plan of Development No 63. As a result, the force of the applicants' arguments, that condition A12 might be relied upon to subject the rights conferred by the rezoning approval to a further decision of the Council's environment branch (the finality point) or to stymie such development altogether (the as of right point), largely disappears. Equally, the legislative power point would fail because condition A12 could not affect the development then proposed at all. The restrictions imposed by condition A12 were irrelevant to the actual exercise of the rights of development conferred by the rezoning and Plan of

49

Development No 63 because there was no native vegetation on those parts of the site where development was contemplated. There was, accordingly, no conflict between the of use rights conferred by the rezoning and the restriction on the removal of native vegetation.

[20] The applicants' first argument must fail, in my opinion,

because it was, in fact, plainly possible for the development proposed at the time of rezoning to proceed unaffected by the restriction in condition A12.

[21] The argument of the respondent, at least as it was put in this

Court, is not that the course of development can be relied upon as an aid to the true construction of the planning scheme. The relevance of the state of the land is to identify the subject matter of condition A12. The relevance of the fact that the development has been carried out since 1996 without a consent to the clearing of native vegetation is not as an aid in the proper construction of the planning scheme; but as confirmation that, because there was no native vegetation in the way of the development contemplated by the rezoning approval and Plan of Development No 63, the operation of the restriction contained in condition A12 was not apt to impede the exercise, or detract from the enjoyment, of the use rights conferred by the rezoning approval and the associated plan of development. In this regard, the respondent points out that there is no evidence that any further approval was sought or obtained to enable the golf course development to proceed as it did.

[22] As to the relevance of the evidence of the physical state of

the land and the course of development, it would be remarkable, in point of principle, if an understanding of the operation of the rezoning approval, subject to condition A12, could not be informed by reference to an appreciation of the physical state of the land at the time the rezoning approval was granted and the plan of development prepared and issued. The impact of the activities contemplated by a proposal for rezoning could not begin to be understood, much less assessed by a planning authority without an appreciation of the physical realities of the land sought to be rezoned. This understanding of the relevance of the physical reality to a proper understanding of the operation of planning instruments seems to accord with the approach taken in Mison & Ors v Randwick Municipal Council.

… [25] So in this case, reference to extrinsic evidence enables one

to identify the native vegetation which is referred to in condition A12. That condition imposed a restriction in

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relation to the native vegetation which was on the site at the date of the rezoning approval. It may also be the case that it imposed a restriction on the removal of future regrowth upon areas which had been cleared as at 1996; but it is not necessary to resolve that issue because it is clear that the vegetation removed by the applicants was not regrowth on land cleared in 1996.

[26] … Here one is concerned to identify the subject matter of a

condition of the rezoning approval. [27] Once the physical reality of the land which was the subject

of the rezoning approval is understood in the light of the evidence of Mr Tamblyn, which his Honour clearly accepted, it seems to me that there was no possibility that the substantive rights of use of the land granted by the rezoning approval and the plan of development contemplated thereby might be entirely defeated by condition A12 or postponed or restricted by a decision by the Environment Branch of the Council.

[28] It is necessary then to turn to a consideration of the

applicants' alternative contention, which was that, even if regard is had to the physical state of the land at the time of the rezoning, the potential of condition A12 to suspend, or detract from the use of the site in the future, for example when regrowth had occurred, meant that it was void by reason of one or more of the points relating to finality, as of right use, and the legislative administrative dichotomy.

[29] On the view I take of condition A12, as a condition of the

rezoning approval, this argument must be rejected. Condition A12 simply says that to the extent that the applicants, or any other owner of the land, might seek to exercise the use rights conferred by the rezoning of the land in a way which involves the clearing of native vegetation, a further consent must be obtained. To say that is simply not to say that the land may not be used for the purposes for which it was rezoned at the end of 1996, or that its use for such purposes is subject to some further decision by the Council's Environment Branch. To say that a particular development may not be able to proceed because of the necessity to clear native vegetation is a far cry from saying the land may not be used for the purposes for which it has been zoned, or that the zoning is apt to be denied its intended effect.”

[60] It was noted at [32] that there was “no suggestion that Condition A12 was

unreasonable or irrelevant to the approval of the application for rezoning”.

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[61] Mr Lyons QC argued that the Court of Appeal’s determination was one “in rem”,

effectively final for all purposes. There are real difficulties about that submission,

some encapsulated in what Kirby ACJ said in Neil Pearson at 362-63:

The major submission made by respondent was that the Federal Court decisions constituted decisions in rem, and as such had preclusive effect not only as between the parties but as against the world. He maintained that the findings by the Federal Court on tariff classification, and the applicability of the TCO, were decisions in rem and thus were conclusive as against all persons. It is helpful, in determining whether these determinations were in fact decisions in rem, to refer back to the factors identified by Drummond J in The Wik Peoples case. The most important element in the test for present purposes is the second factor identified by Drummond J. To be a decision in rem, the judgment ‘must be a decision as to the status or disposition of the thing’. Therefore, the question in this case, is whether a decision on tariff classification of certain goods constitutes a "decision as to the status or disposition" of those goods…. If then, as these authorities suggest, customs duties are taxes on the importation of goods and not on the goods themselves, it is difficult to accept, as a matter of law, that the tariff classification undertaken by the Federal Court was conclusive as to the status of the imported goods as such. The Federal Court decisions decided the level of customs duty payable by the first appellant upon importation of the goods. It did not, as a matter of law, determine the status of the goods themselves. The Federal Court decisions cannot therefore be taken to be decisions in rem so that they conclusively decided against the world, the appropriate tariff classification of the subject machines. All that they did was to conclusively determine them for the purpose for which they were stated, namely the civil proceedings for the recovery of the tariff payable by the first appellant. Even if this conclusion were wrong, and, as Isaacs J and Gibbs CJ felt, customs duties are duties upon the goods in question, I would not consider that the Federal Court decisions constituted decisions in rem binding a later criminal trial in the District Court. Before such decisions could be applied in criminal proceedings as conclusive of any particular matter, a purported decision in rem would have to be based on a complete review of all relevant facts. I am not satisfied that this condition was met in the present case. Once again, the differential evidential contexts, especially the different burdens of proof, lead me to the conclusion that the determinations in the Federal Court should not be considered conclusive decisions in rem…”

[62] Mr Allan gave reasons for being critical of Mr Tambling’s evidence before Judge

Robertson, raising concerns in my mind as to the conclusiveness that should be

52

attached to it on the basis of the use made of it in refusing an application for leave to

appeal, when there was little or no occasion for the Court of Appeal to examine

facts in detail. The complaints regarding Condition A12 made in the Court of

Appeal did not include the new one of uncertainty. The parties to the proceedings

are not the same, even if one takes Mr Lucy as representing the Council. The

individual defendants were not parties in the Court of Appeal (or the Planning and

Environment Court). Above all is the consideration that this is a criminal

proceeding. While at first blush it may seem curious if issues are resolved one way

in a civil case, another way in a criminal case, that can happen. A recent example is

R v Hanson; R v Ettridge [2003] QCA 488. There, the Chief Justice (Davies JA

concurring) and the President made some comments explaining why the prosecution

was unable to rely on Sharples v O’Shea and Hanson [2000] QCA 23. Thus, at [27]

the Chief Justice said that:

“The issue presently agitated, the precise delimitation of the contracts of members and particularly their parties, was apparently not ventilated before the trial Judge in Sharples v O’Shea in the manner in which was approached here. The approach taken there, both at trial and with appeal endorsement does not support the conclusion that evidence of the character earlier described was admissible in these proceedings in the criminal jurisdiction, proceedings constituted among different parties, as an aid to the determination of the identification of the parties to the contracts of membership”.

The President at [48] stated that “it is self-evident that the Sharples case turned on

different evidence than this case and that the lower civil standard of proof applied”,

going on to note the absence from the witness box at the criminal trial of a

significant witness, who had been assessed by the investigating police officer as

unworthy of credit.

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[63] Mr Allan has not made any submissions which would dissuade me from reaching

the same conclusions as (or even applying the views of) the Court of Appeal upon

all of the issues respecting which they expressed views, even though the onus of

proof may be different here. I consider the defendants (respondents in the appeals)

are free to mount a different challenge to Condition A12, based on uncertainty; the

individual defendants are clearly entitled to do that and it would be an odd,

inconvenient result if OCC Holdings was not entitled to take advantage of the point

if (contrary to my conclusion) there were anything in it.

Who Bears the Onus to Show Validity or Otherwise of Condition?

[64] Another point of difference in the appeal concerned the basis on which the validity

of Condition A12 was to be determined. The prosecution accepted that there might

be a challenge to the validity of the condition (in the absence of any statutory

provision to the contrary) but that “the burden in such a case is on the defendant to

establish on a balance of probabilities that the subordinate legislation or the

administrative act is invalid”: per Lord Irvine LC in Boddington v British Transport

Police [1999] 2 AC 143 at 155, a view based on a presumption that what is

impugned is “presumed to be good until pronounced to be unlawful, but is then

recognised as never having had any legal effect at all”. In Selby v Pennings (1998)

102 LGERA 253, the Full Court of the Supreme Court of Western Australia

declined to follow Boddington. Ipp J and Owen J, while accepting from Boddington

that there may be a “collateral attack” on subordinate legislation or an

administrative act, distinguished it on the aspect of onus, holding that where a

defendant defends criminal proceedings on the basis that subordinate legislation or

an administrative act is ultra vires, the burden of proof is on the prosecution. In my

54

opinion, a judge sitting alone in Australia should follow a decision of the final

appeal court of another State in preference to a House of Lords decision, if there is

conflict, particularly so where the Australian court has deliberately distinguished the

House of Lords decision. The notion that in criminal proceedings, absent statutory

provision to the contrary, the prosecution must prove everything that requires proof

is fundamental. Judge Robertson applied it in Howe v Harris (357 of 2004) in a

judgment given at Maroochydore on 20 May 2005, where the appellant defendants

had challenged the validity of an Enforcement Notice on which a prosecution was

based. Judge Robertson noted at [20] of his reasons the absence from the IPA of any

counterpart of the provision precluding challenge to enforcement notices referred to

in Gray v Woollahra Municipal Council [2004] NSWC 112. At [22] his Honour

said:

“Council accepts that it has to prove each and every element of the complaint beyond a reasonable doubt. Once the validity of the Enforcement Notice was called into question by the appellants, the learned Magistrate was obliged to determine the resulting issues bearing in mind that the appellants did not have to prove anything. Once he declined to do so, as he was invited to do by the barrister who appeared for the Council below he fell into error”.

The prosecution was returned to the Magistrate for further proceedings, in which the

parties were expressly permitted to call additional evidence.

[65] Accepting that it is for Mr Lucy to prove that Condition A12 is valid, he has

succeeded in doing so. It is not “reversing the onus” to proceed on the basis that Mr

Lucy does that by disposing of the challenges mounted, in the way that the Crown

must exclude defences such as accident or mistake if and when they are arguably

raised. I respectfully adopt the approach of the Court of Appeal in relation to the

challenges considered by them; the new challenge of uncertainty is defeated on the

bases appearing in these reasons. It is not to the point, in my view, that

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hypothetically there may be different factual scenarios in which there could be some

theoretical uncertainty or argument as to what might happen under the Condition.

This matter is concerned with large scale clearing of vegetation which was not

“regrowth” – to advert to an aspect which the Court of Appeal considered

extraneous.

Further Criticisms of the Complaints

[66] Returning to Mr Allan’s specific criticisms of the complaint, which he submits

cannot be cured by amendment now, because the limitation period has expired (a

fortiori as the prosecutor before the Magistrate expressly abandoned his right to

make any application for amendment), the first couple relate to the complaint’s

failure to distinguish between alternative possibilities allegedly open under the IPA.

Does “development approval” pick up the section-specific definition in s 4.3.3(4) of

the IPA or the general (impossible to apply) one in schedule 10? There was failure

to select from the s 4.3.3(4) definition either section 4.4(5) or 4.7(5) of the repealed

Act. Those dealt with a conventional rezoning and a staged rezoning respectively.

One would have thought that the “rezoning approval” mentioned indicated the

former, which was certainly the one the Court of Appeal, on the companies’

invitation, treated as relevant: see [2005] QCA 84 at [31].

[67] I have considerable difficulty in understanding why it would be thought necessary

to show, if Condition A12 is established, whether it is part of a 4.4(5) approval or

part of a 4.7(5) approval; that aspect strikes me as immaterial. The consequences are

the same. Kennedy Allen’s helpful annotations include cases suggesting that

naming in a complaint the by-law under which the charge is laid may not be

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necessary. In Dore v Won Chong (1914) 8 QJPR 59, Jameson AJ decided it was not

(contrary to the justices’ view at first instance). Earlier, in Preston v Donohoe

(1906) 3 CLR 1089, 1096, the High Court said:

“Various objections were taken to the conviction, some of which may be shortly disposed of. The first was that it was not alleged by the information that the appellant was the master of the ship on the day when Mahomet Mithoo entered the Commonwealth. It would have been better if the word ‘then’ had been used in the information, but the defect, assuming that the information ought not to be read after conviction as if the word had been inserted, is cured by secs. 65 and 115 of the Justices Act 1902, which authorize the Court, on an appeal brought in the mode adopted in the present case, to amend the conviction according to the evidence. The next objection was that the particular class of prohibited immigrant within which Mahomet Mithoo was alleged to fall was not specified in the information. It may be convenient, but we doubt whether it is necessary, that this should be stated in the information. Assuming that it is strictly speaking necessary, which we do not decide, this objection also is cured by the sections of the Justices Act 1902 already mentioned.”

The decision was applied by the Banco Court in Ex parte Parkinson (1909) 26 WN

(NSW) 7 in which Simpson ACJ said at 8 (Cohen J concurring):

“Another point was taken by Mr. Ferguson, that the information was bad for not alleging that the charge was laid under by-law 46. Even if it were necessary to allege the by-law, the omission to do so would constitute a defect either in substance or in form which would be cured by the operation of s.65 of the Justices Act. Under the terms of that section, if the applicant were deceived or misled in any way, or hampered in his defence, it would have been the duty of the magistrate to grant him an adjournment if he had applied for it, but there is no suggestion that the applicant was prejudiced in any possible way. No doubt for many years past this Court has held that an information which discloses no offence is bad, and many prohibitions have been granted on the ground of some omission or defect in the information, but we have now a decision of the High Court upon this precise point in the case of Preston v. Donohoe (3 C.L.R. 1089, at p. 1096).”

Pring J added:

“I am of the same opinion. Upon the last point I am quite clear that the defect, if any, is cured by s.65. The effect of ss.65 and 115 appear to have been entirely overlooked during all these years.”

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[68] In the same way, I do not accede to the submission that the failure to refer to

s 6.1.24 (or s 6.1.23) of the IPA makes the complaints here invalid for failure “to

spell out the essential ingredients of the offence charged”. Mr Allan’s written

submissions in [32] assert the result is the same whether “essential factual

ingredients” are omitted or “essential legal ingredients”. The following paragraphs

assert that

“based on the extent of the averments on the complaints, Condition A12 does not apply to the land where the alleged clearing took place and does not bind Pelican Links Pty Ltd who was allegedly a “successor in title” at the date of the offence. It follows that if Condition A12 does not bind Pelican Links Pty Ltd, the complaint(s) against OCC Holdings (and the other defendants) is legally defective. The absence of any proper averment of the relevant and related provisions of the IPA … is … fatal”.

Consistently with the three cases last mentioned, I hold that it was not essential for

the complaints to refer expressly to every statutory provision that might form a link

in the chain of argument or proof.

[69] The next allegedly missing averment is of

“the essential factual element of the offence that the written approval of Council’s Environment Branch was not given in respect of the clearing … essential to validate the complaints because merely alleging that the defendant ‘did not seek … approval’ cannot sustain a conviction … clearly could not constitute proof that no prior written approval existed”.

[70] It may be pertinent to note Kennedy Allen’s reference to the statement of Griffith

CJ for the Full Court in R v the Justices of South Brisbane, ex parte Thornton

[1903] St R Qd 152 at 154:

“As the words used in the complaint are not synonymous with those used in the statute, the complaint discloses no breach of any legal duty. I think, therefore, that the matter of complaint was one into which the justices had no jurisdiction to inquire. The objection was taken in the Court below, and the defendant was not guilty of lying

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by and permitting an error to be made of which he afterwards seeks to benefit. This case affords a good illustration of the results of inaccuracy. If people would only adopt the simple course prescribed by law, instead of doing something else which they think will do just as well, much time and trouble would be saved. The order nisi for a prohibition will be made absolute.”

[71] In this regard, I accept Mr Lyons’ submission that Mr Lucy is entitled to rely on an

implied averment of lack of a written approval based on the averment that none was

applied for. How one might ask, could there be a written approval without

disclosure to the approver of the clearing intended?

May Essential Ingredients of a Charge be Implied?

[72] In my opinion allegations may be implied in a complaint, even to supply an

essential ingredient. The head note of Bell v Dawson [2000] VSC 169 is:

“In substance the defendant was charged with refusing to accompany a police officer to a police station following a preliminary breath test against s.49(1)(e) of the Road Safety Act 1986 (Vic). The charge did not specify that a requirement had been made to accompany the police officer. The magistrate rejected a submission that that charge was defective and amended it. Section 50 of the Magistrates’ Court Act 1989 (Vic) gives power to the court to amend a defect or error. The defendant was convicted. The defendant appealed on the ground that the amendment resulted in a different offence being alleged and as more than 12 months had elapsed since the date of the alleged offence, the charge was out of time. Held, dismissing the appeal: (i) The making of a requirement to accompany a police officer

to a police station is an essential ingredient of an offence against s 49(1)(e).

DPP v Foster (1999) 29 MVR 365, followed.

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(ii) As originally worded the charge necessarily implied an allegation of a requirement or request to accompany the police officer.

(iii) It could not be said that the absence of the making of the

requirement in the charge left the defendant in any doubt as to the nature of the offence and as to the acts said to constitute that offence.

(iv) It would be carrying technicalities to extremes to find the

charge or amendment invalid”.6

Does Addition of “Or Any Approval at All” Produce Uncertainty?

[73] There was argued an alternative basis upon which the complaints should have been

struck out, being “manifest uncertainty” in them by reason of the inclusion in

particular (7) of the words “or any approval at all”. As the submission puts it, “this

uncertainty” was relied on to support the submission that each complaint was

legally defective. Secondly, it was submitted that Condition A12 was invalid for

being “uncertain in a planning sense”. In paragraph [37] the suggestion was

ventured that his Honour “interchanged the two submissions on uncertainty”. Mr

Allan submitted:

“47. This fundamental defect in the complaint which makes it bad for uncertainty is to be compared to the situation where a complaint is bad for duplicity because it has charged more than one offence known to law.

48. It follows that because of the addition of the words ‘or any

approval at all’ in the ‘particulars’ in each complaint, there existed an alternative basis upon which the complaints could be struck out. That basis is that the complaints are bad for uncertainty. In the event that this Court does not accept the earlier submissions that the complaints ought to have been struck out for want of essential legal (and or factual) ingredients, then the Respondents submit that the complaints should be struck out as being bad for uncertainty.”

6 Compare Alwer v McLean (2000) 116 A Crim R 364; [2000] VSC 396 at [17] where a more

technical approach was taken, the possibility of implication was acknowledged, but did not avail the prosecution; it was unclear which paragraph of the relevant section was relied on to create the offence charged.

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That submission succeeded before his Honour, who (at page 11) appeared to find

“uncertainty … by particularising … ‘or any approval at all’ – the further allegation of not seeking any other approval is a particularisation of an offence that does not exist. … I refuse to extend the category of criminal offences … by allowing the substitution for that approval which was impossible to obtain (that of the Environment Branch) by an alternative means of approval”.

[74] That passage reads as though the learned Magistrate is postulating some non-

existent offence of failing to seek an approval of the Branch, another of failing to

seek some other approval. This is all some distance removed from the offence

charged which is clearing without authorisation. In my opinion it is a world away

from the Television Corporation case, in which the licensee was, as Kitto J

described it, given not the slightest idea of what conduct by it might place its licence

in jeopardy. Here, it is crystal clear that clearing of native vegetation is proscribed

(with the consequence that doing it may constitute an offence) without

authorisation. Any arguable uncertainty there may be is limited to the mechanisms

whereby that authorisation or approval might be forthcoming. The evidence shows

it was perfectly sensible to contemplate there might have been some relevant

approval other than that of the Branch. It may well be that one sought and given

under the Local Planning Policy, had anyone wishing to clear native vegetation

sought one, would have been sufficient authorisation of specifically approved

clearing.

[75] Again with acknowledgement to Kennedy Allen, it might be noted that “mere

surplusage” does not vitiate a complaint: see Turner-Jones v McDonald [1933] St R

Qd 99, and the analogous inclusion in a notice to quit prescribed premises of a

ground not contemplated in relevant legislation: Looke v Parbury & Co Pty Ltd

[1950] VLR 94, at 100. In Burns v Evans, ex parte Evans [1927] St R Qd 206, there

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was an unnecessary allegation in the complaint of Burns’ authority as an employee

of the Commissioner for Railway to prosecute; at 213, Macrossan SPJ, in the face of

lack of proof of that assertion, said there was not “any obligation to prove that

which it was unnecessary to allege”. Macnaughton J described as “mere

surplusages” that allegation (217). There was no suggestion that they ought to have

been removed by amendment. Cf. Sheehan v Gallagher [1902] St R Qd 319, at 324.

Otiose words confronted in Turner-Jones were “and extinguished” in the expression

“attended and extinguished a fire”, descriptive of a situation in which fire authorities

were held entitled to recover charges from an uninsured owner. The words were

“merely a surplusage” (per EA Douglas J at 103). I reject the submission that “or

any other approval” introduces uncertainty (or some additional offence unknown to

the law) into the complaints.

Did Changed Circumstances Render Condition A12 Invalid or Uncertain?

[76] On the other aspect of the uncertainty submissions, it may be accepted that if

Condition A12 were truly meaningless or uncertain in its application to a set of

facts, it is unlikely that a complaint for breach of it could properly be made. In my

opinion, it is not uncertain. Mr Allan’s submission in those circumstances was that

matters changed fatally for the prosecution when the Council’s Environment Branch

ceased to exist, long before 21 July 2004, so it could not apply to the site when the

alleged clearing of native vegetation occurred. The submission (paragraph 70) was

that operation of Condition A12 at law ceased (unknown to relevant persons)

because of abolition of the Environment Branch. The parties had opposed

submissions about what might have happened in light of the administrative

reorganisation. Mr Lucy submits that, if necessary, s 6.1.35A of the IPA should

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have been invoked, which would require application by Pelican Links or some

person or entity in their camp:

“6.1.35A Applications to change conditions of rezoning approvals under repealed Act

(1) This section applies if a person wants to change the

conditions attached to an approval given under section 2.19(3)(a) or 4.4(5) of the repealed Act.

(2) A person may—

(a) make a development application to achieve the change; or

(b) apply under section 4.3(1) or 4.15(1) of the repealed Act to change the conditions.

(3) If a person applies under subsection (2)(b) the application

must be processed by the local government as if the repealed Act had not been repealed.”

[77] That provision was inserted in 2003. By s 6.1.35B, a development approval given

under the IPA prevails to the extent of an inconsistency with a condition of an

approval given under s 4.4(5) of the repealed Act. The opposed submission was that

the Council had the possibility under s 6.1.44 of unilaterally changing Condition

A12 to overcome the difficulty that the defendants contend arose respecting its

administrative workability. I have some difficulty appreciating how s 6.1.44 could

come into the picture, but assuming that it did, the then owner or occupier of

relevant land must be given the opportunity to make representations before any

decision about changing conditions is made. The argument is that by choosing not

to invoke s 6.1.44, the Council has ensured that condition A12 ceased to operate. As

it happened, the coming into force of the Vegetation Management Act 1999 may

have established new controls upon the clearing of native vegetation. Mr Allan is

right that “Council certainly has no power to compel the making of an application

by a person under s 6.1.35A”; Mr Allan says the appellant has wrongly, by referring

to s 6.1.35A, asserted there is some obligation or responsibility on those who might

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be bound by condition A12 to apply under the section for variation of the condition

“where the operation of the condition at law has ceased”. I do not accept that

analysis. It is a workable arrangement for the prohibition in the condition to

continue, leaving it to those concerned to work out some way around difficulties,

should any genuine difficulties arise, about getting the approval. I did not take the

appellant to argue seriously that, assuming (against his submission) that there arose

some impossibility of getting a sufficient approval, the prohibition remains but

without any possibility of getting an approval for clearing. The assertion in

paragraph 72 that the appellant’s submissions would “render the rezoning approval

inoperable” is not one I would accept. It involves factual assertions not made out

(and for which there may be no evidence at all), even if one does not have on the

record in this appeal Mr Tambling’s evidence, which the Court of Appeal relied on

to reject any notion of the rezoning approval being inoperable by reason of

condition A12.

[78] My opinion is that the complaints are good, because as required by s 47(1) of the

Justices Act 1886 they use the words of (or an appropriate selection of words from)

s 4.3.3 of the IPA. Their particulars might have been more fully or more tightly or

differently expressed. For reasons set out above, I find there is no omission of

“essential ingredients”, legal or factual. The “surplusage” arguably introduced by

the words “or any other approval” may give rise to special considerations. There

were – thanks to the administrative reorganisation, which we know had permitted at

least one approval or purported approval under condition A12 following abolition of

the Environment Branch to eventuate – reasons probably (but not necessarily

exclusively) related to abolition of the Environment Branch for inclusion of words

which, as I would construe them, represent Mr Lucy’s acknowledgement that an

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approval other than one from the Environment Branch might have been obtained for

the clearing that allegedly happened. This causes me no concern.

[79] This court is in no position to make judgments about facts which may or may not

have occurred on the ground, or to assert that OCC Holdings committed any

offence. There is nothing, however, to suggest that it has “merits” other than “legal”

ones at this stage, before it has had an opportunity to present evidence of its own.

In the course of and subsequent to the appeal hearing, I have come across dozens of

cases, some of which indicate a strict view of the precision with which complaints

ought to be drawn, others of which are less strict. I would venture the suggestion

(which accords with my own inclinations) that the burden of authority, particularly

in the High Court, is strongly against allowing mere technicalities to defeat a

complaint: there must usually be demonstrable some basis on which the defendant

faces genuine confusion, such that what is complained about is unclear in some

way. I find nothing of that kind here. Perhaps the strongest point concerns the

disappearance of the Environment Branch. There appears to be no authority dealing

with anything even remotely similar. It is not a context like that of trusts, in which

the Supreme Court could intervene as necessary, for example to overcome the

disappearance of someone with a power of appointment. But we are dealing with

everyday practical problems, as to which it is to be presumed (at least hoped) that

all concerned can be relied on to work cooperatively to produce some reasonable

outcome. The disappearance of some so-called “entity” within the Council, an

“entity” which never had any legal existence or persona, would seem to me an event

unlikely in the extreme to have legal consequences or to result in loss of

development rights which “run with the land”; in particular. I strongly incline to the

view that in Condition A12 “Environment Branch” should be taken as a reference to

65

whatever administrative branch, department or section deals with environmental

matters of the relevant kind.

Some Comments Upon Authorities Relied on by the Parties

[80] Sangster J was almost apologetic in Fred Wakefield Pty Ltd v Dowd (1979) 20

SASR 328, in which (see 330) “the sign complained of was more than 3.6 metres

from the street” – i.e. the offence originally charged could not be proved, in his

conclusion at 331-32:

“Courts in modern times do not encourage the taking of fine points but prefer to get to the substance of the matter. The policy of the Legislature as expressed in the Justices Act is clearly to the same effect. On the other hand, authorities who seek to regulate the lives and property of those coming within their boundaries, and to enforce myriads of regulatory by-laws, cannot be heard to complain of insistence that they, in turn, themselves comply with statutes and procedures laid down for compliance by those who seek to enforce those by-laws. In the result I find myself examining the question without any inclination either way. The by-laws themselves create two separate offences – painting signs, &c. without a licence and painting signs, &c. without permission. Indeed, the Local Government Act requires that difference; why it should be so I do not know, but there it is. I have no doubt that an application for a licence where permission was appropriate (or vice versa) would be regarded by the respondent as fundamentally erroneous: they are, he would say, quite different. Having charged the one, and having left it until more than six months from the alleged offence before seeking to substitute a charge of the other, I find the respondent to be too late, and the learned Special Magistrate to have erred in allowing the amendment. I am equally troubled by the expenditure of so much time and trouble by a learned Special Magistrate and two counsel in arguing or deciding a case where clearly the sign was painted with neither licence nor permission, where the maximum fine as prescribed by the By-law is $10.00, and where the By-law neither prohibits the maintenance of the sign once painted nor provides for its removal if required permission be not obtained (otherwise if required licence be not obtained). I think that justice would be done if each party paid his own costs throughout. In my opinion, the appeal should be allowed, and the conviction penalty, and order for costs quashed, and I make no order for costs.”

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[81] I have taken some trouble over Alwer v McLean [2000] VSC 396 which on its face

appears to be a strong authority in favour of the respondents in this appeal. Smith J

said at 369:

“Counsel for the respondent also draws attention to the fact that reg 1001(1)(a) is referred to in the charge and summons in the section set aside for the description of the law under which the charge is brought. It is put that reference to those regulations made it clear to the accused and the magistrate what elements had to be proved and removed any uncertainty in establishing the essential ingredients of the offence to be proved. While this reference provided an information from which the elements could be identified and in that sense protects the accused and informs the court, it seems to me that the law is clear that the information must describe the offence and do so in a way in which the essential ingredients are spelt out. Considering the rationale behind the law, the accused and the court would not be able to identify the essential elements to be proved from the charge and information but would have to obtain the regulations and analyse them to establish all the elements of the offence to be proved. The law's requirements and the rationale underlying it prevent the respondent's above solution being adopted. I note that the strict approach of the law and the justification for that approach were discussed by Kirby J in Walsh v Tattersall (1996) 88 A Crim R 496 at 521-522, 522-523. While in the circumstances of this case, a less strict approach may not have in face caused an unfair trial, that is not the test. The law is of general application and must be applied.”

The regulation by subsection (1) forbade speeding in six cases including:

(a) On a highway in a built-up area, (not being a speed zone, a local

traffic precinct or a shared zone) – 60 kilometres an hour; or

(b) …

(c) In a speed zone – the speed in kilometres an hour indicated …

[82] The defendant was charged that he “on a highway namely the South Gippsland

Highway did exceed 60 KPH between the Loch Fire station and Smith Street”.

Smith J held that the six paragraphs of (1) created “distinct offences” (paragraph

11), any “duplication” being “dealt with by the exception to reg.1001(1)(a) which

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would remove that speed zone from the control of par(a) and place it under par(c)”.

Mr Alwer submitted that the Magistrate had to find that the alleged offence occurred

in a speed zone (paragraph 8) and his Honour at paragraph 24 accepted “that the

appellant was driving in a speed zone”, from which it followed that the relevant

offence was the one under paragraph (c), not the one charged, under (a). The Judge

appeared to accept the submissions (recorded at paragraph 15) that factual elements

determining under which sub regulation Mr Alwer was charged should have been

specified:

(a) That the highway was in a built-up area;

(b) That it was in a speed zone.

The Victorian equivalent of s 47(1) did not help the prosecution, because the words

of the regulation had not been used. See paragraph 17. Smith J said at paragraph 13:

“It is difficult to see any significant hardship to an accused in allowing reg 1001(1)(a) and (c) to apply in the same situation but it seems to me the conclusion I have reached follows from the proper construction of the regulation.”

Summarising, there were “mutually exclusive offences” (paragraph 9), (a) of which

was expressly relied on in the charge, (c) of which was the one proved on the

evidence; the prosecution made a complete mess of things, in a way not reflected

here.

[83] Tunney v Keehn, ex parte Keehn [1977] Qd R 6, which applied R v Holloway Prison

(1916) 85 LJKB 689, 690 was relied on for Mr Lucy to establish the leeway a

complainant has in departing from the strict language of an offence-creating

provision. Some interesting matters were dealt with by Dunn J (Lucas J agreeing) at

13-14:

“Regulation 71A(1) cannot, in my respectful opinion, be regarded as a masterpiece of legal drafting. It appears to me that, as a matter of

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construction, sub-clause (b) ("any person who fails, refuses or neglects to comply with the provisions of sub-clause (a) shall be guilty of an offence") can have application only to the first part of sub-clause (a), which contains positive legislative commands, with which there may be a failure, neglect or refusal to comply; and cannot apply to the proviso. A person who ignores the proviso and drives a vehicle into a ‘station’ which is indicated by a notice to be closed does something which the proviso states to be not necessary; but he cannot be regarded as having failed or refused or neglected to comply with any provision of the sub-section, for compliance imports obedience to a requirement. It follows that, in my opinion, it was not in strictness necessary to include in the complaint the words ‘there being no notice relating to such station indicating it was closed’. The argument that the complainant failed to prove that there was, at the time of the offence, no notice indicating that the "station" was closed fails. This argument was based upon the proposition that what was proved by the complainant was the wording of various signs (none of which indicated that the ‘station’ was closed) at the time of the hearing, but not at the time of the offence. However, it is clear from the whole of the record, and particularly from the submissions to the magistrate of counsel who then appeared for the applicant that the case was fought on the footing that the signs described by Constable Skepper were in the position described by him and worded as he explained, on the day of the offence. In the course of a thorough argument, Mr Fryberg – counsel for the applicant – submitted that the court would issue certiorari to quash the conviction because it was a conviction of a non-existent offence. The submission was that the offence created by the regulation was a failure ‘to drive or cause to be driven’ a motor vehicle to a weighbridge checking station, and that ‘failure to drive’ did not constitute an offence. The point was not raised by the order to review and, clearly enough, was thought of for the first time by Mr Fryberg long after the hearing before the magistrate, at which other counsel had represented the applicant. However, were the point a good one, it may well be that the applicant would be entitled to relief ex debito justitiae. But I have concluded that the intention of the regulation is to make ‘failure to drive’ one offence and ‘failure to cause to be driven’ a separate offence; it is in my opinion designed to have the widest possible operation, and to impose duties not only on drivers actually in charge of vehicles but also on those in authority over such drivers and their vehicles. The applicant was not, it seems a person in authority, and he was therefore appropriately charged and convicted.”

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[84] As to the first aspect, Williams J (Lucas J again agreeing) says at 10-11:

“The only other matter to which I desire to make reference is the submission that there was no evidence that the weighbridge in question was open at the relevant time, this being of some importance in view of the proviso to reg. 71A(1)(a) which is as follows:

‘Provided that it shall not be necessary for any motor vehicle to be driven into any such station where any notice relating thereto indicates that it is closed.’

With this submission was allied the necessity or otherwise for negativing the proviso or exception in terms of s 76 of the Justices Act. The evidence discloses that there was ample evidence upon which the magistrate could conclude that the weighbridge was in fact open, and from which he could conclude also that there was no notice indicating that it was closed. Although exhibit 2, a rough sketch drawn by the witness for the respondent, was not expressly stated to represent the actual position at the relevant time, it seems to me that the notation at the top of that exhibit reading ‘Burpengary Weighbridge Checking Station Entrance Open’ was some evidence upon which the magistrate might well have acted in the absence of any other evidence to the contrary. The evidence further shows that shortly after the appellant drove the vehicle to the depot, the owner drove it to the weighbridge which was then open. He did this after the appellant had been directed so to do by the police officer but had refused to comply. Section 76 reads:

‘If the complaint in any case of a simple offence or breach of duty negatives any exemption, exception, proviso, or condition contained in the Act on which the same is framed, it shall not be necessary for the complainant to prove such negative, but the defendant shall be called upon to prove the affirmative thereof in his defence.’

If a proviso is such as to require that it be negatived in the complaint, a failure to do so will render the complaint defective. See Kennedy Allen on The Justices Acts (Queensland) 3rd Ed. Pp. 213-4 and cf. Serisier v Soleas, Ex parte Soleas [1965] Q.W.N. 21. The principles upon which this proposition is based are clear from the above references and the cases there referred to. See for example R v Audley [1907] 1 K.B. 383 at p. 387 where it was held that the question is whether it is a matter of defence or a matter necessary to define the offence. The application of those principles to specific exemptions, exceptions, provisos or conditions has from time to time created difficulties.

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In this case there has been a purported negativing of the proviso and as I have said, the evidence indicates that the weighbridge station was not closed at the relevant time and there was no notice indicating that it was closed.”

[85] I mention this aspect for the purpose of making clear that s 76 was not part of the

arguments before the court. This appeal has proceeded on the basis that Mr Lucy

bears the onus of proof. Satisfying it may be facilitated by particular features of the

circumstances. For example, an inference that there was no “approval” is, in my

view, inescapable upon proof that none ever was sought. Assertions by legal

representatives such as that the inability to clear native vegetation rendered the

rezoning approval nugatory, as to which there was no evidence, create no obligation

in Mr Lucy to counter them.

[86] Given the conclusion reached that the complaint was valid (which allows scope for

late amendment that would not otherwise exist: Tunney (at 9-10), there is little point

in considering the defendants’ cross-appeal seeking that the complaints be struck

out or dismissed, rather than permanently stayed, which would represent a neater

outcome. If, contrary to my view, amendments were necessary, section 225(3) of

the Justices Act now puts it beyond doubt that this court may make them on appeal.

Costs – Abuse of Process?

[87] The learned Magistrate’s costs order, unusual for incorporating assessment on the

indemnity basis, necessarily falls with the order for a permanent stay of the

complaints. While it is strictly unnecessary for this court to say much on the costs

aspect, some features of the submissions might be noted: further, fairness to Mr

Lucy makes it appropriate for this court to indicate that it does not agree with his

Honour’s condemnation of Mr Lucy. The power of a Magistrates Court to award

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costs “incidentally to the prevention of an abuse of its process” was contemplated in

Phillips v Morris, ex parte Director-General, Department of Families, Youth &

Community Care [1999] 1 Qd R 89, 91; his Honour proceeded on the basis that

interstate decisions (there being none directly in point in Queensland) established

that “before the costs order was made there was a finding of some vitiating conduct

on the part of the party against whom the order was made”. He said in his reasons of

1 December 2006:

“The misconduct in this case which in my opinion is sufficient to justify the order is the inference which arises from the particulars supplied in this matter and specifically the words in paragraph 7 of the complainants ‘or any approval at all’. There is a clear inference arising from those words that they were included to cover the gap which arose when from the time of the amalgamation of the Environment Branch into the Growth Management Unit that no approval of the Environment Branch could issue. Had it been particularised in the complaint that the Environment Branch no longer existed but that the approval could issue from another section of council the issue could have been disposed of at the outset with the quite obvious saving on costs for all parties concerned.”

[88] The defendants’ submissions in the appeal on this aspect could be considered

somewhat overblown. It was submitted (paragraph 131 of the written submissions)

that “it is difficult to conceive of a clearer example of an abuse of process than that

disclosed by the evidence in this case”. It appears to be suggested that Mr Lucy, by

swearing a complaint said to assert the existence of the Environment Branch made a

false declaration contrary to s 194(1) of the Criminal Code, rendering himself liable

to three years imprisonment (paragraph 121 ff) and that he attempted to pervert the

course of justice in that way (paragraph 112 ff). The alleged seriousness of all this is

the assertion (paragraph 97) that “an approval under Condition A12 was impossible

to obtain upon the abolition of Council's Environment Branch in 1998, then … the

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complaints against both the corporate defendants and the individual defendants as

executive officers could not succeed (paragraph 97)”.

[89] Maintaining proceedings that can clearly be seen as foredoomed to fail is the classic

case of abuse of process: see Walton v Gardiner (1992) 177 CLR 378, 393. It is

charged that Mr Lucy has done this, that not only has he known from the outset of

the abolition of the Environment Branch, yet sworn complaints: he persisted in them

even after the fate of the Branch was exposed in the court. Dishonest concealment

of what happened was said to be established by the inclusion of “or any other

approval” in the complaints. Williams v Spautz (1992) 174 CLR 509 establishes that

even where there is a prime facie case, a prosecution may be an abuse of process

and permanently stayed, for example where the purpose underlying them is not to

prosecute them to a conclusion but to use them as a means of obtaining some

advantage for which they are not designed. I did not take this to be any aspect of the

charge levelled at Mr Lucy. Costs were sought on an indemnity basis in reliance on

Colgate Palmolive Company v Cussons Pty Ltd (1993) 118 ALR 248, on the basis

that (to quote paragraph 126 of the submission):

“The proceedings clearly were commenced in ‘wilful disregard of known facts’ (namely that the Environment Branch had been abandoned in 1998) and resulted in the ‘making of allegations that ought never to have been made’:- namely that the defendants had contravened a condition of a development approval, the proof of which depended on proof of the existence of Council’s Environment Branch, which, as a matter of fact, was an impossibility.”

[90] I am unable to read the complaint as asserting any more about the Environment

Branch than its being identified in Condition A12 (the basis of the development

offence charged) and that no application was made to it for an approval (which

might have precluded clearing’s being a breach of condition and potential offence).

The inference could perhaps be drawn that an assertion was being made of the

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continued existence of the Branch, to the extent that it ever had any existence, but

surely other inferences are open. His Honour gave no hint of considering other

possible inferences, or of reasons for rejecting them. From one point of view, the

addition of “or any other approval” might be seen as putting the defendants on

notice.

[91] The foregoing reasons are intended to demonstrate my view that far too much

significance has been attached to the Council’s administrative reorganisation, which

I am inclined to think was something neither here nor there in the overall picture.

Indeed, his Honour seems to have taken a similar approach, until diverted by the

thought that Mr Lucy (and perhaps others in the Council) became involved in

devising and implementing a wicked scheme to secure a conviction of the

defendants by means meriting condemnation. I am unsure of the implications of his

Honour’s statement at page 7 of the later set of reasons that “The final question is

whether the council by continuing with the prosecution has by its conduct acted in

such a way that the defendants should have their costs met”.7 I took him to be

contemplating that, had acceptable means been adopted, the complaints might have

proceeded to a successful conclusion, from the prosecution’s point of view. My

views differ from his in that I think the complaints as sworn were sufficient.

[92] The “no case” submission ought to have been refused at the trial. The trial ought to

have been completed by allowing the defendants to add to the total body of

evidence, if they wished. The Magistrates Court could then have reached a

conclusion, on the merits, in relation to each of the defendants before it.

7 Italics added. It would seem odd to order indemnity costs throughout unless the view was taken that the

very commencement of the prosecutions demanded punishment.

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[93] Pursuant to s 225(2) of the Justices Act, the orders of 1 December 2006 having been

set aside, each of the complaints (that against Pelican Links Pty Ltd, of course,

excepted) is returned to the Magistrates Court. There is no reason for thinking that

his Honour would give other than proper, impartial consideration to the matters;

however, the practice in such cases is to err on the side of caution, and direct that

another Magistrate hear each of the proceedings, which, regrettably, may have to be

done afresh.

[94] I will entertain submissions about costs, in the absence of which it will be ordered

that the respondents in each of the appeals now before the court pay the appellant

his costs.