Land and Environment Court of New South Wales CITATION : Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) v Freeman [2006] NSWLEC 322 PROSECUTOR: Stephen Garrett for and on behalf of the Director-General, Department of Environment and Conservation (NSW) PARTIES : DEFENDANT: Geoffrey Noel Freeman FILE NUMBER(S) : 50043 of 2005 and 50044 of 2005 CORAM: Lloyd J KEY ISSUES: Practice and Procedure :- amendment of summons – name of prosecutor – validity of commencement of proceedings – authority to bring prosecution – correct name under which to bring prosecution Criminal Procedure Act 1986 s 16(2) LEGISLATION CITED: Land and Environment Court Rules 1996 Pt 6 r 2 National Parks and Wildlife Act 1974 s 118D(1), s 175B(1), s 179 Supreme Court Rules 1970 Pt 20 rr 1, 4, Pt 75 r 6 Corporate Affairs Commission v Bain (1991) 55 A Crim R 73; Crothers v Sheil (1933) 49 CLR 399; Director-General, Department of Planning v Epacris Pty Limited [2006] NSWLEC 306; Evans Construction Co Ltd v Charrington & Co Ltd [1983] QB 810; CASES CITED: Fairfield City Council v Colorpak Products (NSW) Pty Ltd (1988) 78 LGERA 144; Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA [1985] 1 NSWLR 212; Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166; Stukey v Iliff (1960) 105 CLR 164; Sutherland Shire Council v Westfield Projects (Australia) Ltd [1992] NSWLEC 88 DATES OF HEARING: 05/06/2006; 06/06/2006/ 07/06/2006 DATE OF JUDGMENT: 06/08/2006 EX TEMPORE JUDGMENT DATE : 06/08/2006 PROSECUTOR: D A Buchanan SC SOLICITOR: Stephen Garrett Department of Environment and Conservation LEGAL REPRESENTATIVES: DEFENDANT: I J Hemmings (barrister) and E Y Ozen (barrister) SOLICITORS: Donovan Oates Hannaford JUDGMENT: - 5 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 8 June 2006 LEC Nos. 50043 of 2005 and 50044 of 2005 STEPHEN GARRETT, FOR AND ON BEHALF OF THE DIRECTOR-GENERAL OF THE DEPARTMENT OF ENVIRONMENT AND CONSERVATION v FREEMAN [2006] NSWLEC 322 EX TEMPORE JUDGMENT 1 HIS HONOUR: The defendant, Geoffrey Noel Freeman, is charged with two offences against s 118D(1) of the National Parks and Wildlife Act 1974 in that, whilst acting in his capacity as a person concerned in the management of Port Macquarie-Hastings Council, by reason of s 175B(1) of the Act he caused damage to the habitat (not being critical habitat) of threatened species knowing that the land concerned was habitat of that kind. 2 The defendant has entered a plea of not guilty. The hearing of the prosecution commenced on Monday, 5 June 2006. The prosecutor intends to call a large number of witnesses and the hearing is expected to occupy several days. On the second day of the hearing, Tuesday, 6 June 2006, Mr I J Hemmings, with him Mr E Y Ozen, appearing for the defendant, submitted that the proceedings are defective ab initio and should be dismissed. I heard argument that day and again on 7 June 2006 on that question. 3 Each of the summonses in these matters has been brought in the name of "Stephen Garrett for and on behalf of the Director General of the Department of the Environment and Conservation". It seems that the proceedings have been brought in this way because the instrument of consent to institute the proceedings signed by the Director-General relevantly states: I, Lisa Corben, Director-General of the Department of Environment and Conservation, hereby consent to and authorise the institution in the Land and Environment Court of New South Wales by Stephen Garrett on my behalf of the following proceedings against Geoffrey Noel Freeman for an offence against the National Parks and Wildlife Act 1974. … 4 The submission for the defendant is that proceedings for an offence against the National Parks and Wildlife Act may not be taken in this way. The submission turns upon the terms of s 179 of the Act, which relevantly states: 179 Authority to take proceedings (1) Subject to subsection (1A), any legal proceedings for an offence against, or to recover any charge, fee or money due under, this Act or the regulations or the Threatened Species Conservation Act 1996 or the regulations under that Act may only be taken by a police officer or by a person duly authorised by the Director-General in that behalf, either generally or in any particular case. (1A) Proceedings for an offence against this Act shall not be instituted in the Land and Environment Court in its summary jurisdiction without the written consent of the Director-General or of such officer of the Service as may be authorised by the Director-General for the purposes of this section. …. 5 According to the defendant's submission, the section does not authorise the Director-General to take proceedings: only a police officer or "a person duly authorised by the Director-General in that behalf" may do so. In the present case it is said that it is the Director-General who is the named prosecutor and not a person duly authorised by the Director-General to do so. Stephen Garrett is expressly said to be acting "for and on behalf of the Director-General of the Department of the Environment and Conservation" and so, it is said, the prosecutor is the Director-General. 6 Reliance is placed upon Fairfield City Council v Colorpak Products (NSW) Pty Ltd (1988) 78 LGERA 144. That was a prosecution brought under the Clean Waters Act 1970 (now repealed). The prosecution in that case had been brought in the name of Fairfield City Council as prosecutor. Sub-section 33(2) of that Act provided that proceedings for an offence against the Act shall not be instituted without the written consent of the Minister. However, sub-s (2A)(b) relevantly provided that sub-s (2) did not apply to the institution of proceedings for an offence if the proceedings are instituted by a servant of the council of the city, municipality or shire in whose area the offence was committed and "with – (i) the consent of the council,…" 7 Hemmings J in that case held (at 199) that the legislature intended that the prohibition against the institution of proceedings without the necessary written consent of the Minister or his delegate applies to all persons including the council but, pursuant to s 33(2A)(b) does not apply to the institution of proceedings by a servant, provided the council has given its consent. 8 Hemmings J held that the subsection by the words used drew a distinction between proceedings instituted by persons with the consent of the council and those instituted by or in the name of the council itself. His Honour went on to hold that a consequence of such a construction is that the proceedings before him had been instituted in an inappropriate name and dismissed the proceedings. 9 The decision of Hemmings J in Fairfield City Council v Colorpak Products was considered by Stein J in Sutherland Shire Council v Westfield Projects (Australia) Ltd [1992] NSWLEC 88, unreported. Although the views of Stein J are obiter, his Honour thought that the decision of Hemmings J correctly states the position. Stein J went on to say that whilst there is an element of illogicality in that a duly authorised council's officer can institute a prosecution in his own name, whereas the council may not prosecute in its own name unless it has the consent of the Environment Protection Authority to do so, nevertheless he did not think that this required a reading down of the relevant provision. 10 Similarly, it is submitted that in the present case the proceedings may lawfully have been instituted by Mr Garrett as "a person duly authorised by the Director-General in that behalf", but here Mr Garrett is not named as the prosecutor– the prosecutor is the Director-General acting through her officer. 11 In Fairfield City Council v Colorpak Products, Hemmings J made a passing reference to Stukey v Iliff (1960) 105 CLR 164. In that case, the Income Tax and Social Services Contribution Assessment Act 1936, s 233(2) provided that a prosecution for the recovery of a pecuniary penalty under the Act may be instituted in the name of the Commissioner of Taxation or a Deputy Commissioner by information in a court of summary jurisdiction. The actual information, however, was laid by one Edgar Austin Iliff, an officer of the Taxation Department, in the name of and on behalf of the Deputy Commissioner of Taxation for the State of Queenland. The High Court (Dixon CJ, McTeirnan, Kitto, Menzies and Windeyer JJ) in a joint judgment, said (at 170): It is Illif's complaint. When he says that he makes it in the name of the Deputy Commissioner he must mean that he makes it for him. For a mere inspection of the complaint shows that it is not in the name of the Commissioner. Apparently the formula "in the name of and for and on behalf of" is used simply to mean "on behalf of". At all events it is not in his name. Indeed the proceedings have been headed as between the appellant Stuckey and the respondent Illif. 12 The Court continued (at 171): It becomes the complaint of the officer and not the complaint of the Commissioner or a Deputy Commissioner notwithstanding that such a complaint may be instituted by the officer under the authority of the Commissioner or Deputy Commissioner. The distinction may be regarded as refined and of little practical significance, but the effect is that, although the complaint states that it is a complaint in the name of and for and on behalf of the Deputy Commissioner, it is the complaint of Iliff … 13 Because the relevant legislation required a prosecution to be instituted in the name of the Commissioner or a Deputy Commissioner the High Court held that the complainant could not avail himself of the averment to support the complaint in the form which he adopted and the complaint was dismissed. 14 In the present case, the proceedings have named the prosecutor as "Stephen Garrett, for and on behalf of the Director-General of the Department of the Environment and Conservation". The present case is thus relevantly indistinguishable from Stuckey v IIiff. In applying the reasoning in the joint judgment of the High Court, although the summonses here state that it is brought by Mr Garrett for and on behalf of the Director-General of the Department of Environment and Conservation it is not in the Director-general's name. It is Mr Garrett's prosecution. 15 The case of Fairfield City Council v Colorpak Products is distinguishable. In that case Fairfield City Council was the named prosecutor – that is, the charges were laid in the name of the council. The facts in the present case, however, are not the same. In this case the proceedings have been brought by a person duly authorised by the Director-General in that behalf. That is, I find in accordance with the authority of the High Court in Stuckey v Iliff that Stephen Garrett is the named prosecutor. Moreover, he is the person authorised by the Director-General to take the proceedings in this Court. 16 In the light of this finding it follows that the proceedings are properly and regularly instituted. The additional words "for and on behalf of the Director-General of the Department of the Environment and Conservation" are a mere surplusage. If, however, this conclusion is wrong then the defect, if any, is not fatal. The position would be governed by sub-s 16(2) of the Criminal Procedure Act 1986, which applies to summary proceedings in this Court: (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form , or ….. 17 This provision, or those like it, has been applied in cases where a person has erroneously described himself as the moving party rather than the party entitled to so do by statute: Crothers v Sheil (1933) 49 CLR 399 at 407; Corporate Affairs Commission v Bain (1991) 55 A Crim R 73. 18 In Crothers v Sheil, s 80 of the Milk Act 1931 (NSW) required any information under the Act to be taken in the name of the Milk Board, by the Secretary or by any other officer authorised by the Board. The information in that case was laid by one William Crothers, "an officer in the service of the Milk Board duly authorised to prosecute herein". Rich J (Dixon, Evatt and McTiernan JJ concurring) held (at 407) that Crothers was the proper officer to lay the information on behalf of the Board, but where the information failed to comply with s 80 was that Crothers exercised his authority in his own name and not in the name of his principal, the Board. The right person had proceeded by an appropriate information but had drawn up the information in his own name and not in his principal's name. That, in his Honour's opinion, was a defect in the information which was healed by s 65 of the Justices Act 1902 (of which s 16(2) of the Criminal Procedure Act is the equivalent provision). In the present case the right person has brought the proceedings but has erroneously included the principal's name. It is the converse of Crothers v Sheil. But the same reasoning applied in Crothers v Sheil applies here. The defect is healed by s 16(2) of the Criminal Procedure Act. 19 In Corporate Affairs Commission v Bain, an order for costs had been made against the Corporate Affairs Commission in the Local Court after the defendant had successfully defended four information laid against him for insider trading. A notice of appeal against the order for costs was filed in the District Court naming an officer of the Commission, Mr John O'Dea, as the appellant, not the Commission itself. The defendant asserted that the court had no jurisdiction to hear the appeal because the appellant was the nominated individual rather than the Commission against which the costs order was made. The Court of Criminal Appeal (Hunt, Carruthers and McInerney JJ) classified the error as a clerical error to which s 65 of the Justices Act 1902 applies, in that Mr O'Dea failed to record on the notice of appeal that he was merely acting on behalf of the Commission. The Court also regarded it wrong to attempt to characterise an application to amend the notice by changing the name of the appellant as being the substitution of a fresh party. The Court of Criminal Appeal went on to hold that the appeal in its original form was sufficient and that no amendment was strictly necessary, but for the sake of good order, what is implied should be amended so that it became express. 20 So too in the present case the additional words "for and on behalf of the Director-General of the Department of the Environment and Conservation", as mere surplusage are in the nature of a clerical error. And although not strictly necessary to do so, and for the sake of good order, the summons should be amended to omit those words. 21 The Court clearly has the power to allow such an amendment. These proceedings are in the summary jurisdiction of the Court, to which the provisions of Pt 75 of the Supreme Court Rules 1970 apply: see Pt 6 r 2 of the Land and Environment Court Rules 1996. Pt 75, r 6 of the Supreme Court Rules states that Pt 20 of those rules, inter alia, applies to summary criminal proceedings. Part 20 is Headed "Amendment". Part 20, r 1 states: ( 1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit. (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings. (3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party. 22 In particular, Pt 20, r 4 relevantly states: (1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired. … (3) 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. (4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity. ... (6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim. 23 Part 20, r 4(3) clearly states that where a mistake has been made in the name of a party it can be corrected by amendment whether or not the effect of the amendment is to substitute a new party. Sub-rule (4) empowers the Court to allow an amendment which would have the effect that Mr Garrett is the prosecutor in his personal capacity only. 24 In the recent case of Director-General, Department of Planning v Epacris Pty Limited [2006] NSWLEC 306, I reviewed the authorities which demonstrate the width of the power of amendment. There is no doubt that the power of amendment includes the kind of amendment which is appropriate here, namely, to omit the words which are surplusage. 25 Counsel for the defendant rely, however, on the following passage from a judgment of Donaldson LJ in Evans Construction Co Ltd v Charrington & Co Ltd [1983] QB 810 dealing with the English equivalent of Pt 20, r 4, adopted by Clarke J in Lloyd Steel (Aust) Pty Ltd v Jade Shipping SA [1985] 1 NSWLR 212 at 218. Donaldson LJ said (at 821) In applying Ord. 20, r. 5(3) it is, in my judgment, important to bear in mind that there is a real distinction between suing A in the mistaken belief that A is the party who is responsible for the matters complained of and seeking to sue B, but mistakenly describing or naming him as A and thereby ending up suing A instead of B. The rule is designed to correct the latter and not the former category of mistake. Which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. 26 Counsel for the defendant submit that the present case falls within the former category of mistake described by Donaldson LJ and is thus not able to be corrected by the rule. I find myself unable to agree. As Donaldson LJ says, which category is involved in any particular case depends upon the intentions of the person making the mistake and they have to be determined on the evidence in the light of all the surrounding circumstances. I have found, however, that the additional words which follow the name of Stephen Garrett as prosecutor are mere surplusage, and that is was always intended that Stephen Garrett was to be the prosecutor. I have also found that there is no need for an amendment, but if there were such a need, then this case falls within the second category of mistake described by Donaldson LJ and is thus amenable to the rule. 27 The only remaining question is whether the Court should in the exercise of its discretion allow the amendment. I have found that the proceedings are validly constituted as they stand, without any amendment. The present proceedings are in truth and in fact a prosecution by Mr Garrett. However, as noted in Corporate Affairs Commission v Bain, for the sake of good order the amendment should be made. The objection taken by the defendant is purely technical. There is no evidence to suggest that the defendant is prejudiced or has been otherwise misled. 28 Leave is granted to the prosecutor to file an amended summonses deleting from the name of the prosecutor whenever appearing those words which follow the name of Stephen Garrett. In accordance with the decision in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, the amendment would take effect from the date of the filing of the summonses. I hereby certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 8 June 2006 **************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.