Queanbeyan City Council v Kovacevic [2015] NSWLEC 152

Land and Environment Court New South Wales

Medium Neutral Citation: Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 Hearing dates: 21 August 2013 Date of orders: 25 September 2015 Decision date: 25 September 2015 Jurisdiction: Class 6 Before: Craig J Decision: (1) Appeal allowed. (2) Set aside the order made by the Local Court at Queanbeyan dismissing the prosecution against the respondent. (3) Remit the matter to the Local Court at Queanbeyan for determination according to law. (4) Order that the respondent pay the appellant's costs of the appeal. (5) The Appeal Book and Exhibit B may be returned. Catchwords: APPEAL – prosecutor appeal from dismissal of proceedings in the Local Court – s 42(2B)(b) of the Crimes (Appeal and Review) Act 2001 – appeal confined to a question of law alone – whether appellant was the 'prosecutor' entitled to appeal under s 42(2B)(b) – whether appellant was the person responsible for the conduct of the prosecution in the Local Court – entitlement to lead evidence directed to that issue – dismissal of proceedings in the Local Court was an acquittal – whether s 42(2B)(b) founded a right by a prosecutor to appeal from an acquittal – offence against s 125(1) of Environmental Planning and Assessment Act 1979 – failure to cease using premises as a transport depot – proper construction of definition of 'transport depot' in Queanbeyan Local Environmental Plan 1998 – disjunctive construction supported by text and context of the definition – appeal allowed – matter remitted to Local Court for determination – order for costs Legislation Cited: Confiscation of Proceeds of Crime Act 1989 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW) Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) Director of Public Prosecutions Act 1986 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Evidence Act 1995 (NSW) Factories, Shops and Industries Act 1962 (NSW) Fines Act 1996 (NSW) Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW) Justices Act 1902 (NSW) Justices Legislation Repeal and Amendment Act 2001 (NSW) Local Government Act 1993 (NSW) Queanbeyan Local Environmental Plan 1998 Road Transport (Safety and Traffic Management) Act 1999 (NSW) Suitors' Fund Act 1951 (NSW) Summary Jurisdiction Act 1848 (UK) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 Attorney General v Till [1910] AC 50 Australian Gas Light Co v Mine Subsidence Board [2006] NSWLEC 494; 147 LGERA 433 Beckwith v The Queen [1976] HCA 55; 135 CLR 569 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales [2008] NSWCA 292; 74 NSWLR 257 Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 Cranbrook School v Woollahra Municipal Council [2006] NSWCA 155; 66 NSWLR 379 Davern v Messel [1984] HCA 34; 155 CLR 21 Director of Public Prosecutions (NSW) v Majok [2009] NSWSC 192; 194 A Crim R 265 Director of Public Prosecutions (NSW) v Wunderwald [2004] NSWSC 182 Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 Director of Public Prosecutions v Darby [2002] NSWSC 1157 Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523 Director of Public Prosecutions v Hardman [2002] NSWSC 714; 37 MVR 137 Director-General Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No 2) [2009] NSWLEC 200 Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 Eastman v The Queen [2000] HCA 29; 203 CLR 1 Fairfield City Council v Mangos [2004] NSWLEC 298 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd [2012] NSWLEC 258 Maritime Authority (NSW) v Rofe [2012] NSWSC 5; 84 NSWLR 51 Matic v Mid-Western Regional Council [2008] NSWLEC 113 Price v Ferris (1994) 34 NSWLR 704 Roads and Traffic Authority (NSW) v Field [2005] NSWSC 606; 44 MVR 60 Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 Williams v Blackley [2010] NSWCA 246 Category: Principal judgment Parties: Queanbeyan City Council (Appellant) Mary Lucy Kovacevic (Respondent) Representation: Counsel: T To (Appellant) J Masters (Respondent)