Epacris Pty Ltd v Director-General Department of Natural Resources [2007] HCATrans 400 (3 August 2007)

Last Updated: 13 August 2007

[2007] HCATrans 400

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S179 of 2007

B e t w e e n -

EPACRIS PTY LTD

Applicant

and

DIRECTOR-GENERAL DEPARTMENT OF NATURAL RESOURCES

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 AUGUST 2007, AT 9.36 AM

Copyright in the High Court of Australia

MR J.M. IRELAND, QC: If the Court pleases, in that matter I appear with my learned friend, MR J.B. MASTON, on behalf of the applicant. (instructed by McGirr James Hall & Associates)

MR M.G. SEXTON, SC: If the Court pleases, I appear with my learned friend, MR E.G.H. COX, for the respondent. (instructed by Crown Solicitor’s Office – Sydney)

GLEESON CJ: Yes, Mr Ireland.

MR IRELAND: Your Honours, most statutes which create penalty provisions limit the time within which a prosecution can be commenced and this case is concerned with the time limitations involved in the New South Wales Native Vegetation Conservation Act 1997 which was enforced between 1983 and 2003. Eight days after the repeal of the Act a summons was issued against the applicant in the Land and Environment Court of New South Wales alleging an offence. The time limit for the prosecution was governed by section 64(4) of the Act which is reproduced, your Honours, at page 3 of the applicant’s bundle of materials. It was a two-year time limitation. The allegation against the applicant in this case in the summons thus filed in the Land and Environment Court was that the applicant had cleared native vegetation on its own property in contravention of section 31 of the Act over a six month period ending on 10 December 2003.

The prosecution was commenced in the name of the Director-General of the Department of Natural Resources. There was recognition by the Crown Solicitor that an error had been made in launching the prosecution in that way. Thus, by notice of motion filed in the Land and Environment Court on 24 February 2006 the present respondent, the Director-General Department of Natural Resources made application to that court for an order that the form of summons be amended to change the name of the prosecutor. The summons which initiated the prosecution is reproduced in a judgment of the Court of Criminal Appeal at page 25 of the application book, and from that your Honours will see that - - -

GLEESON CJ: Is there some provision of the usual kind that applies here that produces the result that if an amendment is allowed the amendment takes effect from the date of the filing of the original process?

MR IRELAND: Yes, that is so. So if the amendment were granted, as it ultimately was, it in one sense backdated the validity of the prosecution - - -

GLEESON CJ: If the amendment is granted there is no time problem?

MR IRELAND: Correct. As the primary judge recorded, your Honours, the respondent’s application to amend the proceedings to change the identity of the prosecutor was misconceived. It was made before the Land and Environment Court under section 68(2) of the Land and Environment Court Act 1979, and at application book 5, line 22 the primary judge correctly held that that section was inapplicable because it only applied where there was a failure to comply with the rules. That is lines 25 to 28 on page 5 of the application book. So what happened was, the primary judge recast the application to amend which he records at application book 6, commencing at line 32 in paragraph 17 where his Honour said:

It seems to me, however, that the position is governed by Pt 20, r 4 of the Supreme Court Rules, which was not referred to by either Counsel. The position is also governed by the cases in which that rule has been applied, which again were not referred to by either Counsel and which I have researched myself.

So this was an exercise which the judge himself embarked upon not having had the application based upon the relevant rule. I hope you will not regard it as surprising that counsel for the respondent did not refer to the rules and so it is not the basis of the application. But the critical provision with which this application today is concerned is reproduced, your Honours, at application book 6 commencing in paragraph 18 of the primary judge’s decision and at the top of page 7 of the application book is the important provision upon which the matter ultimately turned. There is no contest, I think, but that the applicable rule was the rule which the judge ultimately entertained. The provision is that:

Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.

I ask your Honours to look at the summons at application book 25. There is no facsimile reproduction of the summons but I can provide one if it is needed together with an order which the Court of – could I have permission to hand that up, your Honours?

GLEESON CJ: Yes.

MR IRELAND: I say that because there is nowhere in the materials the associated order which the Court of Criminal Appeal regarded as important and I do not think your Honours have seen that yet. But you will see that the summons is in the so-called flat filing system and prominently at the front is nominated “Director-General Department of Planning”. That was the wrong name. There is also I would say tucked away on page 3 a second reference where it says, not in the body of the summons but, rather, in the hearing date notification which says “Prosecutor: Director-General Department of Natural Resources”. Do your Honours see that on page 3?

GLEESON CJ: Yes.

MR IRELAND: So there is, we would say, on the face of it an internal inconsistency within the summons but prominently and practically speaking when one receives this document one usually looks at the intitulment to the proceedings to work out who is suing you, but I point out the inconsistency. The question then became, ultimately, was that form of summons one which was such within the meaning of the rules to engender reasonable doubt as to the identity of the person intended to be made a party?

GUMMOW J: Mr Ireland, this is all terribly interesting but we are at the level of special leave.

MR IRELAND: Yes, your Honour.

GUMMOW J: Section 16(2) of the Criminal Procedure Act is a provision with a long history, is it not?

MR IRELAND: Yes.

GUMMOW J: It goes back into cases like Crothers v Sheil and back beyond Sir Samuel Griffith, I think.

MR IRELAND: Yes, it does.

GUMMOW J: Now, you complain that that is a new point taken, but at the level of special leave is it not an important matter to take into account?

MR IRELAND: Well, your Honour, the important thing is there is a mechanism in section 16(2) of the Criminal Procedure Act now which mirrors historically the sort of provisions that your Honour has just referred to, originally in New South Wales in the Justices Act your Honour might remember, and I think in 1986 consolidated in the way it is.

GUMMOW J: Yes.

MR IRELAND: Your Honour, that is a mechanism by which one can take the Court in proceeding with a charge, can, as it were, discount matters of detail or formality which might not be thought to bear unfairly upon an amendment. But, your Honour, the key in this case is that the judge and the Court of Criminal Appeal did not embark upon, nor could they embark upon, an assessment of that question. This case was determined, as it had to be, in my respectful submission, upon the application of the relevant rule that I have just identified. So that it is not just a pawn to king four reflex, well, this point was not taken but, rather, the judge himself who entertained the application did not evaluate it in terms of section 16.

GLEESON CJ: So what is the error that the Court of Appeal made?

MR IRELAND: We say that the error is they treated this as a subjective question, your Honours.

GLEESON CJ: The looked at it from both points of view.

MR IRELAND: Could I just take your Honour to the critical passage. It will probably save time, if I may. At first blush we would say the terms of the section invited an objective test. The Court of Criminal Appeal comes to the question at paragraph 40 on page 39 of the application book. After reference to the rule they say this, line 37:

If we had been invited in 1965 – when the progenitor of SCR Pt 20 r 4(3) was first introduced in England – to determine whether the inquiry should be directed to the objective nature or quality of the mistake itself or to the subjective reaction to that mistake by the other party, we would have said that the wording of the rule indicates that correct test is the objective one. But more than forty years since 1965 of judges treating the rule as if it permitted the subjective test to be applied, even though never expressly deciding the issue, leads us to conclude that it is too late now to insist that our view is the correct one.

GLEESON CJ: Bearing in mind, of course, that these judges who were interpreting it, it is their rule. If they do not like the rule, they can change it.

MR IRELAND: They can, your Honour. I do not know what the political forces at work in relation to those things are, but what we do know is that this is the rule which was adopted not only in this State, it is also to other States I think - - -

GLEESON CJ: I am just suggesting to you that one reason a court might stand by a longstanding practical interpretation of the court’s own rule is that the court has the power to change the rule.

MR IRELAND: Your Honour, that is a possibility, but my client has been dealt with in the rule in this form and not some future form that might be postulated and the question then becomes, is this rule against the tentative view of the Court of Criminal Appeal here but somehow overlain by what we say was a misconception as to what the earlier, particularly English, cases had to say, one which contains a subjective test? There is no doubt at line 50 on page 39:

We are therefore not satisfied that the judge erred in the present case by making a subjective assessment as to whether the defendant had in fact been misled.

The judge went completely wrong in this because not only did he say, “In this case I am not satisfied that this defendant was misled in the requisite way”, but his Honour also imposed effectively an evidentiary burden that someone had to jump in the box, one assumes, and give their own reaction to it. We would say, your Honours, that such a rule which allows a subjective question of that type to be entertained is completely impermissible and it is only a rule that is been applied in this case because of what the Court of Criminal Appeal has discerned to be the trend of some early authority, contra-intuitively of themselves and counter to what we would say are the plain meaning of the words.

The complications which can arise with a subjective test being introduced in this point are manifold. Your Honour, the question is, applying the rule fairly, and looking at the document that I just handed up, is the form of this summons which names the wrong prosecutor prominently in the place where it matters, in my submission, such as to be misleading as to the identity of the prosecutor or such as to cause reasonable doubts as to the identity of the prosecutor? We say that if you apply an objective test there is only one answer to that and the reason that this case has gone wrong is that the Court of Criminal Appeal has, through the process that I have sought to identify, come to a half-hearted view of the applicability of a subjective test, upholding the judge’s subjective assessment here which itself was flawed.

GLEESON CJ: Am I right in thinking that underlying this is the proposition that you have got two different descriptions of the relevant Director-General in the document and if you cared to make an inquiry as to which one was the right one you would find out that the right one was the Director-General of the Department of Natural Resources?

MR IRELAND: If you rang up?

GLEESON CJ: If your lawyer did whatever was necessary to resolve the uncertainty. Suppose you took this to your lawyer and you said, “Look, I have got a document here which on page 1 says the prosecutor is the Director-General of the Department of Planning and on page 3 says that the prosecutor is the Director-General of the Department of Natural Resources, who is the prosecutor?”

MR IRELAND: The lawyer tosses a coin and says, “I am not sure”.

GLEESON CJ: No, does not the lawyer try and find out who is the person responsible for enforcing the legislation?

MR IRELAND: Yes, of course he does, to answer your Honour’s question, but that is not where you apply the test. It is the identification of the party with which the rule is concerned, not the identification of a lawyer. One looks to the document itself and it has to be tested in the context of someone who might not have a lawyer to say “Well, who is prosecuting me here?” There is a document internally inconsistent, prominently wrong, and does that, on an objective test – can it be said on an objective test that it is not misleading or not such as to cause reasonable doubt.

All this matters because this deficient document was filed on the very last day of the two-year period, sought to be amended months later, and the statute’s import is that valid prosecutions may be brought within time, thereafter there is no vulnerability to prosecution, and that is something which the legislature enshrines, as it does in many of these cases. So that is the short point, your Honour. We say that the test is completely wrong, as the Court of Criminal Appeal has identified it, and on any fair view of this objectively tested there could not have been leave to amend.

GLEESON CJ: We do not need to hear you, Mr Solicitor.

We think there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed with costs.

AT 9.51 AM THE MATTER WAS CONCLUDED