Livbuild Pty Ltd v Willoughby City Council

1. [1]

   WARD CJ in Eq: I will ask Beech-Jones J to deliver his judgment.

2. [2]

   BEECH-JONES J: Pursuant to s 5AB of the Criminal Appeal Act 1912, the appellant, Livbuild Pty Ltd (“Livbuild”), appeals against its conviction in the Land and Environment Court for two offences under s 125(1) of the Environmental Planning and Assessment Act 1979 (the “EPAA”) of carrying on “development” on land that an environmental planning instrument specified could not be carried out without consent in the absence of such a consent, contrary to s 76A(1) of the EPAA. Livbuild required an extension of time to file its notice of appeal under s 10(1)(b) of the Criminal Appeal Act. An extension has already been granted by a Registrar of this Court.

3. [3]

   Even though Livbuild pleaded guilty to the two offences, it contends that its convictions should be set aside on the basis that the prosecution of the offences was commenced out of time. The prosecutor, the Willoughby City Council (the “Council”), accepts that the prosecutions were commenced out of time and the convictions should be set aside. For the reasons that follow I consider that concession was correctly made.

Background

1. [4]

   On 19 September 2014 the Council filed two summonses in the Land and Environment Court charging Livbuild with the offences the subject of the appeal. On 21 November 2014 Livbuild entered pleas of guilty to both charges. The sentence proceedings took place on 16 February 2015. On 9 March 2015 Pepper J published reasons and imposed sentence (Willoughy City Council v Livbuild Pty Ltd [2015] NSWLEC 34). Her Honour convicted Livbuild of the two offences, fined it $48,000 for one offence and $19,000 for the other, and ordered it to pay the Council’s costs of the proceedings.

2. [5]

   The agreed facts placed before Pepper J stated that Livbuild was a building contractor and that in 2009 it was engaged to perform work on a property in Northbridge by its owner. This building work, which included the unauthorised work, commenced “[i]n about March 2010”. The agreed facts record that Livbuild stopped work on the property on 29 March 2012. On this appeal an agreed fact was tendered which restated that Livbuild stopped work at that time. The agreed facts tendered before Pepper J also recorded that on 27 February 2013 Steven Balafas “an officer of the Council, inspected the property and observed that works had been carried out in the rear yard of the property, adjacent and below the pool and spa terrace and adjacent to the foreshore”. Pepper J made findings in accordance with those facts.

3. [6]

   From the time the proceedings were commenced until they concluded at first instance, s 127 of the EPAA relevantly provided:

4. [7]

   During that period, Division 2C of Part 6 included s 122I(1) of the EPAA which provided that the “Director General may appoint any person (including a class of persons) as an authorised officer for the purposes of this Division”. (Division 2C of Part 6 was repealed and subsection 127(5A) was amended with effect from 31 July 2015 by the Environmental Planning and Assessment Amendment Act 2014: schedule 2[7] and 2[8]. The amended version of s 127(5A) has no relevance to these proceedings.)

5. [8]

   Given that it was agreed that Livbuild ceased undertaking work on the property in March 2012 it followed that the proceedings against it were not commenced within the two year period provided for in ss 127(5). However, the proceedings had been commenced within two years of Mr Balafas’ inspection in February 2013 and thus former s 127(5A) might have been satisfied if he was “an authorised officer within the meaning of Division 2C of Part 6” of the EPAA.

6. [9]

   On 10 December 2015 Craig J published reasons for rejecting a plea of guilty proffered by the owner of the property and acquitted him on similar charges to those filed against Livbuild: Willoughby City Council v Screnci [2015] NSWLEC 192. His Honour found that the charges had been commenced out of time with the consequence that the summons should be dismissed and acquittals entered (at [58]). In so far as the Council had sought to rely on Mr Balafas’ inspection in February 2013 and former s 127(5A), Craig J recorded the following (at [22]):

7. [10]

   Craig J then determined that the Council had not proved that the proceedings were brought within the two year period referred to in s 127(5) (at [42]).

8. [11]

   An affidavit sworn by Livbuild’s solicitor on 1 August 2017 and read on this appeal states that Livbuild became aware of Craig J’s judgment in December 2016. Between December 2016 and June 2017, the solicitor corresponded with the Council and then its solicitors in relation to Mr Balafas’ status as an officer under Division 2C of Part 6 of the EPAA. In June 2017 the Council’s solicitors confirmed the Council’s concession that Mr Balafas was not an authorised officer under former Division 2C of Part 6 of the EPAA at the relevant time. This concession was repeated in a statement of agreed facts tendered on this appeal.

The Appeal

1. [12]

   The submissions of both parties cite a number of authorities for the proposition that, notwithstanding a plea of guilty, a conviction that results from a prosecution brought in breach of a statutory time period will be liable to set aside on appeal including R v Cooling [1990] 1 Qd R 376; R v Tait [1996] 1 VR 662; [1995] VSC 154 (“Tait”)

2. [13]

   In Tait Callaway JA, with whom Winneke P and Crockett AJA agreed, explained that an appellate Court would set aside a conviction in such circumstances on the basis that it involved a miscarriage of justice. His Honour held that a plea of guilty that was entered to a prosecution commenced in breach of a statutory bar as to time would be liable to be set aside because it fell it within the category of cases where “upon the admitted facts [the appellant] could not in law have been convicted of the offence charged (at 665 citing R v Forde [1923] 2 KB 400). In such a case “if the applicant could not lawfully be prosecuted … he could not lawfully be convicted”. This approach was entirely consistent with the analysis of Dawson J in Meissner v The Queen (1994-1995) 184 CLR 132; [1995] HCA 41 at 157 concerning the circumstances in which a conviction based on a plea of guilty will be set aside.

3. [14]

   The proposition that a conviction based on a plea of guilty to a charge that was filed in breach of a statutory bar as to time should be set aside in an appeal under s 5(1) of the Criminal Appeal Act was treated as obvious in Faehringer v R [2017] NSWCCA 248 at [40] to [42] per Wilson J (with whom Macfarlan JA and I agreed). There is no reason not to adopt the same approach with an appeal under ss 5AA and 5AB of the Criminal Appeal Act. This position can be contrasted with a collateral challenge to a prosecution on the basis that the proceedings were commenced out of time. Depending on the form of statutory bar, a conviction that results from such a prosecution will usually not be affected by a jurisdictional error (Parisienne Basket Shoes Proprietary Ltd & Ors v Whyte (1938) 59 CLR 369; [1938] HCA 7; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545; [1938] HCA 37 at 553)).

4. [15]

   Accordingly, I propose the following orders:

   1. (1)

      The orders made by the Land and Environment Court on 9 March 2015 in proceedings number 50764 and 50767 of 2014 be set aside and, in lieu thereof:

5. [16]

   WARD CJ in Eq: I agree with Beech-Jones J and the orders Beech-Jones J proposes for the reasons that his Honour has given.

6. [17]

   PRICE J: I also agree.

7. [18]

   WARD CJ in Eq: The orders will be entered as proposed by Beech-Jones J.