corrs in brief MAY 2012 Strict interpretation of Local Government Act will lead to practical difficulties for local government prosecutions recent important Court of Appeal Decision This In Brief examines the recent case of Ipswich City Council v Dixonbuild [2012] QCA 98, where the Court of Appeal dispelled the long accepted practice of public officers bringing complaints in their own name on behalf of the local government by whom they are employed. It will also provide some practical tips for proving offences of contamination under the Environmental Protection Act 1994 (Qld) (Environmental Protection Act). BACKGROUND Dixonbuild Pty Ltd (Dixonbuild) was in the business of building houses. Dixonbuild did not employ builders but engaged subcontractors to perform building work under the supervision of Dixonbuild employees. In February 2009, a load of bedding sand was dumped at one of Dixonbuild s construction sites. In mid-february 2009, an Ipswich City Council (Council) Compliance Officer visited the site and issued an Infringement Notice to a related entity of Dixonbuild. Another Compliance Officer visited the site in late March 2009 and issued another Infringement Notice to Dixonbuild in early April 2009. Some time in April 2009, two Compliance Officers attended Dixonbuild s offices at Rocklea to deliver a notice requiring Dixonbuild to remove the sand. The supervisor with responsibility for the site found out about the Compliance Officers visit and contacted them by telephone. The supervisor claimed that he only became aware of the presence of the sand on the site as a result of his communications with the Compliance Officers. Magistrates Court proceedings On 14 January 2010, Craig Maudsley, the Chief Operating Officer of the Council, made three complaints against Dixonbuild under section 440ZG of the Environmental Protection Act for: unlawfully depositing sand in a roadside gutter on two occasions; and unlawfully depositing sand in a way that it could reasonably be expected to wash, blow, fall or otherwise move into a roadside gutter. On 9 July 2010, the Magistrates Court convicted Dixonbuild of the offence of unlawfully depositing sand in a way that it could move into a roadside gutter and imposed a fine of $20,000 on Dixonbuild. However, the magistrate dismissed the other two charges against Dixonbuild because the magistrate could not find beyond reasonable doubt that it was Dixonbuild who had dumped the sand at the relevant construction site that is, it was one of Dixonbuild s contractors. Appeal to the District Court Dixonbuild appealed to the District Court against both the conviction and the penalty imposed by the Magistrates Court. On 31 August 2011, the District Court allowed the appeal and ordered that the complaint be dismissed. In a separate judgment, the District Court ordered the Council to pay Dixonbuild s cost of the Magistrates Court trial. The Council appealed to the Court of Appeal division of the Supreme Court. WHO SHOULD BRING PROSECUTION PROCEEDINGS? The complaint Notwithstanding section 35 of the Local Government Act 1993 (Qld) which provided that any proceedings by the Council must www.corrs.com.au MAKING BUSINESS SENSE 6684329
be started in the name of the Council, it had been accepted practice for public officers acting in their official capacity to bring complaints in their own name on behalf of the local government by whom they were employed. In accordance with this accepted practice, the Council s complaint against Dixonbuild was made as follows: THE COMPLAINT OF CRAIG MAUDSLEY CHIEF OPERATING OFFICER (HEALTH, PARKS AND RECREATION) of IPSWICH CITY COUNCIL...a public officer as defined in the Justices Act 1886...made this day of 14 January, 2010, as authorised agent for and on behalf of IPSWICH CITY COUNCIL before...a Justice of the Peace...who says that... Dixonbuild s submission At the Court of Appeal hearing, Dixonbuild submitted that the prosecution of an offence under the Environmental Protection Act must (and may only) be bought in the name of a local government and not in the name of a public officer employed by the local government. To support this submission, Dixonbuild relied on: section 100 of the Environmental Protection Regulation 2008, which provided that the administration and enforcement of the Environmental Protection Act is devolved to the local government with jurisdiction over the area in which the offence is said to have been committed; and section 35 of the Local Government Act 1993 (Qld), which provided that [a]ny proceedings by the Council must be started in the name of the Council Note: This section has been repealed, however it has been reproduced in largely identical terms in section 237 of the Local Government Act 2009 (Qld). What did the Court find? The Court reasoned that, as Mr Maudsley made the complaint as an employee of the Council acting in an official capacity in the discharge of a statutory power which was devolved on Council, he should have brought the complaint in the name of the Council and not in his own name. Accordingly, the Court of Appeal found that the complaint was defective. IMPLICATIONS OF THE DECISION IN RELATION TO STANDING Practical difficulties The Court of Appeal s ruling on this point will result in a number of practical difficulties for local governments: Ex parte judgment no longer available Previously, where a proceeding was brought in the name of a public officer on behalf of a local government and the defendant did not appear in response to the summons, section 142A of the Justices Act 1886 (Qld) (Justices Act) allowed the Court to consider the complaint in the absence of the defendant, without requiring a full hearing. As local governments will now be required to bring proceedings in their own name, they will not be able to take advantage of this convenient mechanism in the Justices Act and will therefore have to incur the extra costs of conducting an ex parte hearing to prove a complaint in the event that a defendant fails to appear. Of course, a public officer could start proceedings in his or her name (see section 42 of the Acts Interpretation Act 1954 (Qld)) but it must be noted that that option is not available in all circumstances, for example, when prosecuting for non-compliance with an enforcement notice under the Sustainable Planning Act 2009 (Qld) (Sustainable Planning Act). Further, a public officer may not wish to risk incurring a cost order personal to him or her. Greater vulnerability to an adverse costs order Whereas section 158A of the Justices Act largely insulates proceedings brought by public officers from adverse costs orders, this section does not apply to proceedings brought in the name of a local government. Arguably, local governments bringing proceedings in their own name may persuade the Court to exercise its discretion under section 158 of the Justices Act in their favour, however, it is clear that local governments will be more vulnerable to adverse costs orders now that they are required to bring proceedings in their own name. There is case authority (decided before the insertion of section 158A into the Justices Act) that it is wrong at law to refuse costs on the basis that the complaint was not laid vexatiously, nor with vindictive or malicious intent. Section 158A clearly sought to redress the situation discussed in the cases but it only applies to public officers or police officers. When offence comes to knowledge of Council may refer to the first Council officer to know anything about the offence Finally, as local governments are now required to bring proceedings in their own name, local governments may not be able to rely on provisions such as section 497 of the Environmental Protection Act, which allow for an extended limitation period by reference to when the matter first comes to the complainant s knowledge. PAGE 2
If a proceeding is brought in the name of a local government, it is more likely that a Court will find that the local government had knowledge of the matter, akin to vicarious knowledge, when a local government employee received information about that matter (for example, when an officer first takes a telephone complaint), rather than when an individual complainant directed his or her mind to the information (see Cross Country Realty Pty Ltd v Peebles [2007] HCATrans 322 (21 June 2007)). This, in effect, may mean that Council will not be able to take advantage of provisions such as section 497 of the Environmental Protection Act. Where fines are to be paid to If the complainant must be an individual, then the local government will not be able to rely upon section 246 of the Local Government Act, which means that any fines imposed for an offence against a Local Government Act will be payable to the State Treasury as opposed to the local government s operating fund. See also section 614 under the Sustainable Planning Act which allows the assessing authority to apply to the Court for an order that it recover the costs of the investigation. An individual complainant or public officer is not an assessing authority. Accordingly, Council will not be able to apply under section 614. What local governments must do now Amend complaints As noted above, generally, it is open to any person to bring proceedings for the imposition or enforcement of a penalty in his or her name acting in a private capacity, save those offences prescribed in section 597(3) the Sustainable Planning Act: the most notable being an offence under section 594 which relates to non-compliance with an enforcement notice. Accordingly, it may not be necessary in all prosecutions to amend the complaints but, as discussed above, there are a number of difficulties that may arise if the complaints are not amended. It must be also be noted that the Court of Appeal has taken the position that (to use lay phraseology) If it looks like a duck, walks like a duck, and quacks like a duck; then it is duck. If it is clear that the individual complainant is an employee of the local government acting in an official capacity in the discharge of a statutory power which is devolved on the Council (for example, matters under the Environmental Protection Act), then the prosecution is the local government s and therefore should be made in its name; otherwise it is defective. Therefore, in most instances, local governments should amend existing proceedings brought under the Justices Act so that the complainant is named as the relevant local government, rather than one of its employees. If the complaint relates to an offence mentioned in section 597(3) of the Sustainable Planning Act but is made by a public officer, it will be defective but generally the complaint is curable by an amendment. There is case law supporting amendments of this nature even if the application for amendment is more than 12 months after the date of the alleged offence. An application for amendment of the complaint is a relatively straight forward process and can be made at a Court mention. Review of delegations, timely Section 240(1) of the Local Government Act makes it clear that local governments will not need to pass a formal resolution to amend complaints such that the local government is the complainant. This section provides that: [i]n any proceedings, the CEO, or another employee authorised in writing by the local government (a) may give instructions and act as the authorised agent for the local government; and (b) may sign all documents for the local government. However, local governments should consider amending any existing delegations to bring proceedings under the Justices Act to make it clear that the officer to whom the delegation is given is authorised to: decide whether the local government should initiate proceedings against any person or in respect of any matter in the local government s name; and to sign any court document. Possible legislative amendments Given the practical difficulties outlined above, it may be appropriate for local governments to make submissions to the State requesting an amendment of section 237 of the Local Government Act 2009 (Qld) to allow for proceedings under the Justices Act to be made by a duly authorised public officer on behalf of a local government. This amendment would allow local governments to take advantage of the ex parte judgment and costs mechanisms that are available to public officers under the Justices Act. It may also be timely to make submissions to the State seeking that the operation of sections 597 and 598 of the Sustainable Planning Act be clarified such that it is made clear that an assessing authority may make start proceedings via a public officer. PAGE 3
PROVING A CONTAMINATION OFFENCE UNDER THE ENVIRONMENTAL PROTECTION ACT The offence Section 440ZG of the Environmental Protection Act provides that a person must not unlawfully deposit a prescribed water contaminant in waters, a roadside gutter or at another place and in a way that the contaminant could reasonably be expected to wash, blow, fall or otherwise move into a roadside gutter. Section 440ZE(2) of the Environmental Protection Act provides that a person deposits a contaminant at a place if: the person is an occupier of the place or the contaminant is under the person s control; and someone deposits the contaminant at the place by dropping, placing or throwing the contaminant in the waters or onto the place or releasing the contaminant or otherwise causing it to move into the waters or onto the place; and the person does not remove the contaminant from the place within a reasonable time after becoming aware that the contaminant has been deposited at the place. [emphasis added] The key issue in the case It was common ground that Dixonbuild was the occupier of the site and that someone, namely, a contractor who delivered the bedding sand, had deposited a contaminant at the site. Therefore, the key question in this case was when was Dixonbuild aware of the presence of the sand? What did the Court find? Although the Magistrates Court found that the supervisor responsible for the site was aware of the pile of sand, the Magistrates Court did not find that the supervisor was aware of the sand on the site or at the place alleged in the complaint. The Court of Appeal stated that Council had to prove this specific awareness of the location of the sand before it would hold Dixonbuild guilty of the offence. As the Council failed to prove this specific awareness, the Court of Appeal upheld the District Court s judgment that Dixonbuild should not be convicted of the offence. IMPLICATIONS OF THE DECISION IN RELATION TO THE SUBSTANTIVE ISSUE Background In the past, if there was a relevant condition in a development approval relating to management of erosion and sediment control, local governments would often bring proceedings relating to breach of this condition against a contractor as an occupier of land under the Sustainable Planning Act. However, in Sunshine Coast Regional Council v Sugarbag Road Pty Ltd [2011] QPEC 124 (Sugarbag case), Justice Dorney QC found that a contractor could not be considered as an occupier of the land as an occupier of land should be able to enjoy the benefit of the rights attached to the land, including the right to take advantage of and cause the implementation of a development application that is attached to the land by virtue of section 245(1)(a) of the Sustainable Planning Act. As the Sugarbag decision has made it more difficult for local governments to bring proceedings against contractors as occupiers under the Sustainable Planning Act, many local governments started to use on a more frequent basis the offence under section 440ZE of Environmental Protection Act to prosecute erosion and sediment control offenders. While Ipswich City Council v Dixonbuild [2012] QCA 98 does not rule out this option, it serves as a good reminder that local governments must engage in an additional level of evidence gathering if they wish to bring a prosecution under 440ZE of the Environmental Protection Act. PRACTICAL TIPS FOR PROVING A CONTAMINATION OFFENCE The Court of Appeal s decision in Ipswich City Council v Dixonbuild [2012] QCA 98 makes it clear that local governments that wish to rely upon the section 440ZE(2) offence provision must prove that a person deposited a contaminant in a particular place and should therefore make the following inquiries: 1 Identify the correct defendant This may require Council to: conduct multiple company searches, particularly if there are seemingly related companies; request a business card from someone on site; take photographs of any construction signs on the property indicating who is responsible for the development; or telephone the defendant to confirm that they are responsible for the site. 2 Identify the person who deposited the prescribed contaminant Someone on the site may be able to help the Council with this step. Failing this, Council may rely on section 465 of the Environmental Protection Act to ask a person who Council suspects may be able to give information about the offence, to answer a question about the offence. For PAGE 4
example, which company delivered the sand, or, which company do you usually use to deliver the sand. Enquiries can then be made of that entity. 3 Prove the deposit is within the land occupied and controlled by the defendant It is unlikely that Council will need a survey to establish this an officer should be able to look at the relevant plans and estimate the width of the footpath from the gutter and identify the relevant boundary. 4 Telephone the defendant and speak to management about the deposit Once Council has done this, it can use its records of this conversation to establish that the defendant was aware of the deposit from the telephone call. 5 If the deposit is partly on the site and partly on the footpath, to prove that the contaminant could reasonably be expected to move into a gutter, establish: a. whether the prescribed contaminant on the footpath is a sufficient barrier to prevent the sand on the site moving into the gutter? b. whether the distance between the site and gutter is too great for the contaminant to move? c. whether rainfall is predicted and, if so, are the predictions for showers or rain? 6 Consider prosecuting the defendant under the following provisions: a. Section 443 of the Environmental Protection Act which provides that a person must not cause or allow a contaminant to be placed in a position where it could reasonably be expected to cause serious or material environmental harm or environmental nuisance; b. Section 104(1) of the Waste Reduction and Recycling Act 2011 (Qld) which provides that a person must not illegally dump waste. AUTHORS Leanne O Brien Special Counsel, Brisbane Tel +61 7 3228 9453 leanne.o brien@corrs.com.au Stacey Parker Graduate Lawyer, Brisbane Tel +61 7 3228 9807 stacey.parker@corrs.com.au KEY CONTACTS Henry Prokuda Partner, Brisbane Tel +61 7 3228 9791 henry.prokuda@corrs.com.au Luke McDonald Partner, Brisbane Tel +61 7 3228 9744 luke.mcdonald@corrs.com.au SYDNEY Governor Phillip Tower 1 Farrer Place Sydney NSW 2000 Tel +61 2 9210 6500 Fax +61 2 9210 6611 MELBOURNE Bourke Place 600 Bourke Street Melbourne VIC 3000 Tel +61 3 9672 3000 Fax +61 3 9672 3010 BRISBANE Waterfront Place 1 Eagle Street Brisbane QLD 4000 Tel +61 7 3228 9333 Fax +61 7 3228 9444 PERTH Woodside Plaza 240 St George s Terrace Perth WA 6000 Tel +61 8 9460 1666 Fax +61 8 9460 1667 Corrs Chambers Westgarth, 2012 This publication does not constitute legal advice and should not be relied on as such. You should seek individualised advice about your specific circumstances. We have sent this publication to you because you have requested to receive these publications from us. If you do not wish to receive such publications, please send an email with Unsubscribe in the subject heading and containing your name and contact details to privacy@corrs.com.au. PAGE 5