Reported Decision : 70 NSWLR 605; 156 LGERA 59; Land and Environment Court of New South Wales CITATION : Burwood Council v Jally Development Pty Ltd [2007] NSWLEC 543 PROSECUTOR: Burwood Council PARTIES : DEFENDANT: Jally Development Pty Ltd FILE NUMBER(S) : 50014 of 2007 CORAM: Biscoe J KEY ISSUES: Construction and Interpretation - Prosecution :- whether criminal proceedings should be permanently stayed on ground that its continuance is precluded by s 45(2) Fines Act 1996 – whether application for withdrawal of penalty notice enforcement order under s 46(2) can be made by a council or only by appropriate officer who applied for the order – whether order can only be withdrawn under s 46(2) if order made in error. LEGISLATION CITED: Fines Act 1996 ss 45, 46 Environmental Planning and Assessment Act 1979 ss 76A, 125, DATES OF HEARING: 7/8/2007 EX TEMPORE JUDGMENT DATE : 7 August 2007 PROSECUTOR: Mr A Lang, barrister SOLICITORS Houston Dearn O'Connor LEGAL REPRESENTATIVES: DEFENDANT: Mr T G Howard, barrister SOLICITORS Ma & Company JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES BISCOE J 7 August 2007 50014 of 2007 BURWOOD COUNCIL v JALLY DEVELOPMENT PTY LTD EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a motion by the defendant, Jally Development Pty Ltd, for an order that these criminal proceedings be permanently stayed on the ground that s 45(2) of the Fines Act 1996 precludes its continuance or, alternatively, on the ground that it is an abuse of process. 2 The charge against the defendant is that it committed an offence under s 125 of the Environmental Planning and Assessment Act 1979 (EPA Act) because it carried out development contrary to s 76A on land known as 93 – 95 Burwood Road, Enfield in that the development was not carried out in accordance with a development consent granted by Burwood Council on 19 October 2004. 3 The parties have agreed on the following facts for the purpose of this stay application: (1) On 5 September 2006, D Brooks, an officer of Burwood Council, issued the defendant with a penalty notice with respect to the offence which is now before the Court. The penalty notice required the defendant to pay a penalty in the sum of $600 (or elect to have the allegation determined by a court). (2) The defendant did not elect to have the allegation the subject of the penalty notice determined by a court, but nor did the defendant pay the penalty notice. (3) On 6 December 2006, the State Debt Recovery Office issued a penalty notice enforcement order to the defendant in respect of the alleged offence. It required payment of the amount of $1,250, comprising the $600 penalty imposed under the penalty notice plus $600 in payment of a separate penalty notice which is not relevant, plus $50 in additional enforcement costs. (4) On 8 February 2007, Houston Dearn O'Connor, solicitors acting for Burwood Council, wrote to the Infringement Processing Bureau, inter alia, requesting the withdrawal of the penalty notice on the basis that the council had instructed that firm to commence proceedings in the Land and Environment Court (solicitors' letter). (5) As at 8 February 2007, the defendant had not paid to the State Debt Recovery Office the sum required to be paid under the penalty notice enforcement order. (6) On 2 March 2007, Justice Pain signed the Class 5 Order in relation to these proceedings and the Summons was issued. (7) On 14 March 2007, the State Debt Recovery Office wrote to Ms Maria Likenbagh at the PO Box address of Houston Dearn O'Connor informing her that, in respect of the penalty notice and penalty notice enforcement order, enforcement action had ceased and the penalty notice was "no actioned". (8) On 25 May 2007, the defendant entered a plea of guilty to the charge. (9) On 7 June 2007, after the defendant's legal representatives became aware of the fact that the offence had been the subject of a penalty notice and penalty notice enforcement order, the defendant paid, or purported to pay, the penalty notice enforcement order in the sum of $1,250. Payment was accepted by the State Debt Recovery Office and a receipt was provided. 4 Part 3 of the Fines Act 1996 (ss 19 to 56) provides an alternative to a prosecution by way of summary criminal proceedings. It creates a procedure for the issuing of penalty notices pursuant to which a range of summary offences may be dealt with by way of imposition of a civil penalty which, unless disputed by the recipient of the notice, may then be enforced as a debt to the State. Unless a person who receives a penalty notice elects to have the matter dealt with by a court in summary proceedings, the matter remains in the civil enforcement stream. There are a range of enforcement measures if there is default in payment, including measures which tend to be associated with criminal conduct, such as the imposition of a community services order or imprisonment. In my opinion, the legislative purpose, as the defendant submitted, is to create a system for dealing with such matters, which is an alternative to prosecution by way of summary proceedings. 5 Of central importance to the present case are ss 45(2) and 46(2) of the Fines Act 1996. Sections 45 and 46 provide as follows: 45 Effect of making, or of payment under, penalty notice enforcement order (1) If a penalty notice enforcement order is made in relation to an offence alleged to have been committed by a person: (a) the person is not as a result taken to have been convicted of the offence, and (b) the making of the order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence. (2) If the full amount payable under a penalty notice enforcement order is paid or recovered, no person is liable for any further proceedings for the alleged offence concerned. This subsection ceases to apply if the order is duly withdrawn under this Part and the amount paid under the order is repaid. (3) The payment of any amount payable under a penalty notice enforcement order is not an admission of liability for the purpose of and does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence. (4) Nothing in this section affects the operation of any provisions of Division 5 relating to the annulment of a penalty notice enforcement order or any provisions of Part 4 relating to the enforcement of a penalty notice enforcement order. 46 Withdrawal of order (1) The State Debt Recovery Office may, on application or its own initiative, withdraw a penalty notice enforcement order if satisfied that: (a) a fine to which it applies has previously been the subject of a penalty notice enforcement order in respect of which any enforcement action has been taken, or (b) the person named in the penalty notice enforcement order is not the same person as the person in respect of whom a fine to which the order applies was imposed, or (c) the order relates to the owner of a vehicle or vessel, being a vehicle or vessel involved in an offence the subject of the fine at a time when the owner was not the owner of the vehicle or vessel concerned, or (d) the order was otherwise made in error. (2) A penalty notice enforcement order must be withdrawn if application for its withdrawal is made by the appropriate officer who applied for the order. (3) A penalty notice enforcement order may be withdrawn completely or only to the extent of some of the penalty notices to which it applies. (4) If a penalty notice enforcement order is withdrawn completely: (a) the order then ceases to have effect, and (b) any enforcement action already taken is to be reversed, unless the same enforcement action is authorised under another penalty notice enforcement order or a court fine enforcement order, and (c) enforcement costs are not payable in respect of the issue of the order and, if paid, are repayable, and (d) any amount that has been paid under the order is repayable to the person by whom it was paid. (5) If a penalty notice enforcement order is withdrawn only to the extent of some of the penalty notices to which it applies: (a) the order continues to have effect in respect of the remaining penalty notices to which it applies, and (b) any amount that has been paid under the order is to be applied to payment of the remaining penalty notices to which it applies and any enforcement costs in respect of that order. (6) The withdrawal of a penalty notice enforcement order does not prevent the making of a further order in respect of the penalty notice. (emphasis added) 6 As the defendant paid the full amount of the penalty notice, under s 45(2) it is not liable for any continuance of these proceedings unless the order was "duly withdrawn" under s 46(2) pursuant to the solicitors' letter. The order was withdrawn but not because it was made in error. As s 46(1) is expressly only concerned with withdrawal of an order if it was made in error, the subject withdrawal cannot be viewed as having been made under s 46(1). 7 The defendant submitted that the order has not been duly withdrawn under s 46(2) for a number of reasons including the following: (a) on its proper construction, an order can only be withdrawn under s 46(2) if it was made in error. In the present case the purported withdrawal of the order was not because it was made in error; (b) further or in the alternative, a withdrawal under s 46(2) can only be made if the application for withdrawal is made " by the appropriate officer who applied for the order ". In the present case the application was not made by that individual but by solicitors acting for council. 8 The discretion to withdraw an order under s 46(1), on anyone's application or on the State Recovery Office's own initiative, only arises if the order was made in error. There is an obligation, as distinct from a discretion, to withdraw an order under s 46(2) if the application is made by the appropriate officer who applied for the order. Section 46(2) should be construed in context and consistently with the purpose or purposes of the Act. Part of the context is s 46(1) which only permits withdrawal of an order if it was made in error. As discussed earlier, a purpose of the Act is to keep such a matter in the civil enforcement stream unless a person who receives a penalty notice elects to have it dealt with by a court in summary proceedings. To construe s 46(2) as giving an untrammelled right to the appropriate officer who applied for the order to have it withdrawn for any reason, would create some tension with that purpose. I see no such tension if it is construed as limited to the circumstance of an order having been made in error. 9 The latter construction also derives some support from the following consideration. If there is a right under s 46(2) to have an order withdrawn for any reason, it is difficult to see why the legislature would have intended that it should effectively die when the authorised officer who applied for the order dies. If, however, s 46(2) is construed as applying only where the order has been made in error, the consequence of the officer's death is not so illogical because the discretion to withdraw the order for error remains under s 46(1). 10 Before reaching a conclusion as to that construction issue, I turn to the defendant's second submission that the solicitors' letter was not an application under s 46(2) because it was not by or on behalf of the "appropriate officer who applied for the order". Council contended that that phrase could be construed as including the council itself, or that the solicitors' letter should be regarded as having been written on behalf of the officer who applied for the order. I do not accept the latter contention since the letter was written on behalf of council itself. As for the former contention, council submitted that a person could include a corporation and reference was made to s 8(d) of the Interpretation Act 1987 (NSW) which provides that in any Act a reference to a person does not exclude reference to a corporation merely because elsewhere in the act there is a particular reference to a corporation. 11 The natural meaning of an "officer" is an individual. In a related context, s 127A(1) of the EPA Act provides that an "authorised person" may serve a penalty notice, which suggests reference to an individual. Section 3 of the Fines Act 1996 defines "appropriate officer" by reference to s 22 which provides as follows: 22 Persons who may issue and deal with penalty notices (appropriate officers) (1) A penalty notice may be issued by a person authorised by the statutory provision providing for the issue of the notice. (2) For the purposes of this Part, the following are appropriate officers for a penalty notice: (a) a person so authorised to issue that kind of penalty notice, (b) a person employed in the Office of State Revenue in the Treasury and authorised by the Chief Commissioner of State Revenue for the purposes of this Part, (c) a person, or a member of a specified class of persons, specified in the regulations for that kind of penalty notice or for all penalty notices. 12 If applicable, s 22 suggests that "authorised officer" means an individual and not a corporate entity such as the council. I doubt that it is applicable because it seems to be concerned with persons who issue and deal with penalty notices rather than with persons who apply for their withdrawal under s 46(2). 13 In my opinion, in s 46(2) of the Fines Act the expression "appropriate officer who applied for the order" is a reference to the natural person who applied for the order. In the present case, that person did not apply for withdrawal of the order. Returning to the applicant's first submission discussed earlier, I am also persuaded that the preferable construction of s 46(2), having regard to its context and the statutory purpose, is that it is concerned only with withdrawal of an order which has been made in error. In the present case, the order was not made in error. In my opinion, for both those reasons, under s 45(2) the order has not been duly withdrawn and the defendant is not liable for any further proceedings for the alleged offence. 14 Accordingly, I order that these proceedings be permanently stayed. 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. 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