Reported Decision : 202 FLR 316 New South Wales Supreme Court CITATION : HEALEY v COMMISSIONER OF TAXATION [2006] NSWSC 853 HEARING DATE(S) : 21 August 2006 JUDGMENT DATE : 22 August 2006 JURISDICTION : COMMON LAW JUDGMENT OF : Rothman J at 1 DECISION : (a) Leave to appeal is granted; (b) Pursuant to the terms of s.53(3)(b) of the Crimes (Local Courts Appeal and Review) Act 2001, the order of his Honour B Lulham LCM, made on 17 May 2006 granting leave to amend the name of the defendant in the proceedings prosecuted by the Commissioner of Taxation against Gregory Harrison Healey is quashed; (c) The application to amend is remitted to the Local Court to be dealt with in accordance with law. CATCHWORDS : Practice and Procedure - Appeal from Magistrate - Discretion to amend Court Attendance Notice to correct spelling of name of party - Injustice, meaning of - Broad considerations - Magistrate impermissibly confining or excluding relevant factors Crimes Act 1914 (Cth) Crimes (Local Courts Appeal and Reivew) Act 2001 LEGISLATION CITED : Criminal Procedure Act 1986 (NSW) Judiciary Act 1903 (Cth) Taxation Administration Act 1953 (Cth) Interpretation Act Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 655 CASES CITED : Saraswati v R (1991) 172 CLR 1 House v R (1936) 55 CLR 499 PARTIES : P - Gregory Harrison Healey D - Commissioner of Taxation FILE NUMBER(S) : SC 12764/2006 COUNSEL : P - Mr T D F Hughes SOLICITORS : P - Ms Joanna Brouwer D - Mr T Saunders LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 741/2006 LOWER COURT JUDICIAL OFFICER : His Honour Lulmah LCM LOWER COURT DATE OF DECISION : 17 May 2006 - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 22 August 2006 GREGORY HARRISON HEALEY v COMMISSIONER OF TAXATION 12764/2006 JUDGMENT 1 His Honour: The plaintiff, Gregory Harrison Healey, is a principal in a firm of solicitors and was prosecuted by the defendant, the Commissioner of Taxation, for an alleged failure to file a tax return in a relevant year. Since the time of the purported commencement of the proceedings, the plaintiff has filed the tax return in question. Further, I am informed from the bar table, that the policy of the defendant is, once a tax return has been filed, no new criminal proceedings are commenced. 2 The Court Attendance Notice (CAN) originally served on the plaintiff misspelt his name. The CAN spelt the plaintiff's surname as "Healy". The plaintiff was the subject of a default judgment and subsequently made application for an annulment of that judgment. The defendant sought to amend the CAN by correctly spelling the plaintiff's surname. 3 The matter came on for hearing before his Honour Lulham LCM on 17 May 2006 and his Honour annulled the default judgment and gave leave to amend the CAN by correctly spelling the plaintiff's name. 4 The learned Magistrate purported to allow the amendment by granting leave pursuant to the terms of s.15C of the Crimes Act 1914 (Cth) ("the Commonwealth Act). 5 Pursuant to the terms of s.53(3)(b) of the Crimes (Local Courts Appeal and Review) Act 2001, the plaintiff appeals the decision to allow the amendment. The major substantive point in the appeal is that the terms of s.15C of the Commonwealth Act do not allow the amendment in question and that an amendment of that kind is required to be effected under the terms of s.21 of the Criminal Procedure Act 1986 (NSW). 6 At one point in the proceedings, it was suggested that the issue was one concerned with the operation of s.109 of the Constitution. If it were so, it may be necessary to serve notices under s.78B of the Judiciary Act 1903 (Cth). However, it seems that no such issue arises. There is no contest that if the Crimes Act 1914 (Cth) allows an amendment of this kind, it applies to the exclusion of the Criminal Procedure Act 1986 (NSW). Rather, the argument of the plaintiff is that the Crimes Act 1914 (Cth) does not apply at all which argument depends only on the construction of the Commonwealth Act. No party suggests that the Commonwealth Act covers, or was intended to cover, the field. No constitutional issue arises. 7 The offence with which the plaintiff was charged and which was before the learned Magistrate below was an offence under s.8ZA of the Taxation Administration Act 1953 (Cth) and is punishable on summary conviction. Pursuant to the terms of s.68 of the Judiciary Act 1903 (Cth) state courts are conferred with the jurisdiction to deal with the matter in accordance with the procedure of that state court. 8 The Magistrate was encouraged, by the Commonwealth, to deal with the matter pursuant to the terms of s.15C of the Commonwealth Act. Section 15C is in the following terms: "Form of indictments, information and summonses. (i) At the hearing of any indictment, information or summons, the court may make such amendment in the indictment, information or summons as appears to it to be desirable or to be necessary to enable to real question in dispute to be determined. (ii) … (iii) The power of the court under subsection (i) shall not be exercised in cases where the court considers that the required amendments can not be made without injustice to the defendant." 9 The terms of the Criminal Procedure Act 1986 (NSW) ("the State Act") which the plaintiff, in these proceedings, submits is the jurisdictional foundation for any amendment, is in the following terms: "21. Orders for amendment of indictment, separate trial and postponement of trial. (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to make the circumstances of the case. …" 10 The differences between the operation of s.15C of the Commonwealth Act and s.21 of the State Act do not seem to be great. If there be a difference, it is that s.15C of the Crimes Act 1914 focuses the attention of the Court, in granting leave, on the amendments and whether the making of amendments can be done without injustice to the defendant. On the other hand, to the extent that it is different, s.21 of the Criminal Procedure Act requires the Court to have regard "to the merits of the case" but still requires the Court to determine whether the indictment can be "amended without injustice" thus focusing attention back onto the amendment itself. 11 In construing the terms of s.15C of the Commonwealth Act one must follow the injunction of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and in Saraswati v R (1991) 172 CLR 1. That approach is a purposive approach to construction, statutorily embodied within the terms of s.33 of the Interpretation Act. The approach requires a court, in interpreting a provision in an Act, to give preference to a construction that promotes the purpose or object underlying the Act over a construction that would not promote that purpose or object. (see Saraswati, supra at 21). In Project Blue Sky, supra, the High Court said: " … The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning." ( Project Blue Sky , at 384 [78], per McHugh, Gummow, Kirby and Hayne JJ) 12 The clear intention of the provisions of s.15C of the Commonwealth Act is to allow the Court to deal with the real questions in dispute in any justiciable controversy that comes before the Court by way of indictment, information or summons. On one view, a narrow and literal view, the terms of subsection 15C(1) allow an amendment to the body of the indictment, information or summons to enable clarification of the factual issues in dispute, i.e. alleged by the prosecution, but not a change in the name of the defendant. However, where the name of the defendant leads to no misapprehension as to the person who is being prosecuted, the terms of s.15C, in my view, allow for an amendment to include that person. In this case, the name "Healey" was irrelevantly misspelt; the terms of the CAN were served at the office of the plaintiff and there can have been no misapprehension that the defendant named in the CAN was intended to be the plaintiff in these proceedings. 13 I have formed the view that the terms of s.15C of the Commonwealth Act allow an amendment of the kind here determined and deal with the kind of amendment required. In those circumstances it is unnecessary to deal with the terms of s.21 of the Criminal Procedure Act. However, if it were, I would hold that an amendment of this kind could be made under that Act, as well and that the legislative intention of the State and Federal legislature in this areas is supplementary or additional to any other power that may, under the common law or statute, otherwise exist. 14 The aforesaid determination does not resolve the issues in the proceedings. Even if I were wrong in my assessment that the terms of s.15C deal with the issues in question, it does not seem to matter. A mistake as to the power being exercised does not, of itself, vitiate the exercise of power. If there is jurisdiction to deal with the matter and a court or tribunal acts under the wrong section, there is no jurisdictional error which would vitiate the exercise. However, what must be understood in that analysis is that the exercise of discretion must conform with the statutory power sought to be exercised. 15 The Magistrate in his judgment made clear that he was taking into account injustice to the defendant. At page 5 of the transcript to the proceedings, the learned Magistrate said: "If the amendment is made in this matter, it cannot be said that such amendment would cause injustice to the defendant. True it is that the proceedings themselves have consequences so far as the defendant is concerned; I am informed that he is a solicitor. The fact that the proceedings are commenced has consequences in relation to his requirements to inform the Law Society of several of certain matters. But those consequences are not injustices, they may be consequences that flow from the fact that the summons Court Attendance Notice has been issued." 16 Grounds 6 of the Summons raises the issues associated with the proper exercise of the discretion of the learned Magistrate. In so doing it is alleged that the Magistrate did not have regard to relevant factors. 17 The principles that are to be applied in an appeal against an exercise of discretion are trite and well recognised. They are best adumbrated in the judgment of the High Court in House v R (1936) 55 CLR 499. In order to overturn the exercise of the discretion of the Magistrate it must be shown, relevantly, that there is a manifest error, i.e. one where no specific error can be shown, but the result is such that there must have been error and, therefore, the error is manifest. Further, a court may intervene on appeal where the Magistrate has failed to have regard to relevant factors or taken into account irrelevant factors. In this case, the Magistrate expressly precluded from the exercise of his discretion the total circumstances surrounding the prosecution and the circumstances of the plaintiff. 18 Without the amendment, there is no indictment which names the plaintiff and on which he can be convicted. Therefore the amendment, and any injustice caused by the amendment, must be measured against the proposition that absent the amendment, no proceedings would ensue. In circumstances where the policy of the Commissioner is that new proceedings would not issue in circumstances where, as here, the tax return has been filed, the exclusion of these circumstances from the consideration of the Magistrate in the exercise of his discretion under s.15C of the Commonwealth Act results in a failure to have regard to a relevant factor in the exercise of the discretion. 19 The following passage is apposite: "In my judgment … "an injustice" must be construed in a wider sense. It must connote unfairness, and import a sense of grievance, at "the hand of stern injustice and confused wrong" (Shakespeare, King John, Act V, sc 2). It must be used of such a case as where by a change of the law property would go awry; so that those who use the term "injustice" colloquially might think it not appropriate for the purpose of conveying the meaning that the new legislation had worked regrettably, and against the interests of those who would otherwise have enjoyed advantages." Re: Freeman [1927] 1 Ch 479 at 486, 487 CA, per Lord Hanworth MR 20 The considerations relevant to "injustice" are broad and ought not to be artificially confined. In this context it refers to any unfairness, or inappropriate or unjust loss of advantage otherwise enjoyed, directly or indirectly, caused by the amendment. As is made clear by the learned Magistrate, he excluded from consideration some of those broad aspects. This exclusion was impermissible. 21 Taking into account the possibility of injustice to the plaintiff of the proceedings continuing, including extra curial effects, may not bring about the result for which the plaintiff contends. After all, the consequential effects also have remedies and the actions of the Law Society are reviewable in this Court. 22 In the circumstances, an error of law has occurred and the Court makes the following orders: a Leave to appeal is granted; b Pursuant to the terms of s.53(3)(b) of the Crimes (Local Courts Appeal and Review) Act 2001, the order of his Honour B Lulham, LCM, made on 17 May 2006 granting leave to amend the name of the defendant in the proceedings prosecuted by the Commissioner of Taxation against Gregory Healey is quashed; c The application to amend is remitted to the Local Court to be dealt with in accordance with law. 23 I shall hear the parties on the question of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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