Witheyman v Van Reit Court of Appeal QCA08-168
Witheyman v Van Reit QDC Appeal07-342
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TRANSCRIPT OF PROCEEDINGS
(re-typed from Court Transcript)
MAGISTRATES COURT
COSTELLO, Magistrate
MAG- 00192264/05(7)
PETER ROBERT WITHEYMAN Complainant And
EKARI PARK PTY LTD,
N J CONTRACTING PTY LTD and
NICHOLAS DANIEL VAN REIT Defendants
ROMA
…DATE 06/06/2006
DECISION
06062006 T1/JET M/T ROMA/0301 (Costello Magistrate)
BENCH: This is a decision on a preliminary point arising out of complaints by Peter Robert Witheyman against Ekari Park Pty Ltd and others.
On the 20th of October 2005, the complainant, Robert John Witheyman swore complaints against Ekari Park Pty Ltd, N J Contracting Pty Ltd and Nicholas Daniel Van Reit. The complainant averred that for each complaint knowledge of the commission of the offences did not come to his knowledge until
22 October 2004. The defendants seek the determination of a preliminary point that the proceedings were instituted out of time.
Particulars of the complaints are as follows: Nicholas Daniel Van Reit, Ekari Park Pty Ltd and N J Contracting Pty Ltd were charged with breaches of the
Integrated Planning Act 1997 in that between 8 August 2002 and
15 April 2004 at Mungallala South in the Magistrates Court District of Roma in the said State, they did start assessable development without a development permit for the development, such assessable development being operational works that was the clearing of native vegetation on freehold land.
It was alleged that the assessable development was carrying out operational work that was the clearing of native vegetation on freehold land, namely lot 4 on plan KE102.
Nicholas Daniel Van Reit and N J Contracting Pty Ltd were charged with breaches of Land Act 1994 in that between 8 August 2002 and 15 April 2004 at Mungallala South in the Magistrates Court District of Roma in the said State, they did clear trees or allow trees to be cleared on land other than under a tree-clearing permit or under an exemption under division 3, part 6, chapter 5 of Land Act 1994.
It was alleged the land where the trees were cleared were the roads passing through lot 4 on plan KE102 namely the Mitchell- Bollon Road Tullundunna access road.
Both legal representatives, namely Mr P Wilson for the complainant and Mr P Sheridan for the defendants, have each filed submissions and responses to the other’s submissions.
The point taken by the defendant relate to complaints (contained in annexure 1) of the defendants’ outline. Penalties for the subject complaints are high. For example, carrying out assessable development without an effective development plan attracts a penalty of up to 1,665 penalty units or $124,875. Of course, these penalties compound for a corporation.
The defendants’ argument is that these complaints were not commenced within one year after the offences came to the complainant’s knowledge. If a complaint is commenced outside this period, I may, nonetheless extend time if I consider it just and equitable in the circumstances.
The case for the defendants’ strike-out application may be summarised as follows:
1. The reasonable belief of the Department as expressed in its correspondence of 22nd September 2004.
2. This letter signed by the complainant himself shows the complainant acquired, it is said, knowledge of the commission of the subject offences only when he had information before him as to give him reasonable grounds for such belief, and that date was no later
than the 22nd of September 2004.
3. The deeming provisions of section 67A of the Vegetation Management Act 1999 as to who is responsible for unauthorised clearing reverses the onus of proof onto the defendant, the point being that the prosecution’s job is made that much easier.
4. That in the circumstances it would not be just and equitable to extend time.
5. The complainant’s explanation is nothing more than an unacceptable smokescreen to cover up failure to timely prosecute according to law.
The complainant rejects this argument completely and relied principally upon the following:
1. Time runs from when the complainant has prima facie proof in respect of all the elements of an offence and that the complainant did not know the culpability of the defendants until the information request response on 22 October 2004.
2. When I say “the elements”, I include “person” as an element and that, as the complainant puts it, he must have knowledge who the offender is and that he has acted as alleged.
3. If time has expired, then it is just and equitable to extend time for the prosecution of these complaints.
The question first to arise is whether there is any common ground between the complainant and the defendants. Leaving aside certain historical matters that are not contested, the complainant and the defendants agree on the effect of applicable law.
In respect of the charges against Ekari Park Pty Ltd and N J Contracting Pty LTD and Nicholas Van Reit for breaches of the Integrated Planning Act 1997, the complainant agrees with the
defendants’ submission that the relevant provision in respect of time is section 68 of the Vegetation Management Act 1999.
In respect of the charges against N J Contracting and Nicholas Van Reit for breaches of the Land Act 1994, the complainant’s submission is that section 431H of the Land Act 1994 as at 20 May 2004 applies, but for present purposes the provision is substantially the same as that contained in section 68 of the Vegetation Management Act 1999.
In support of the argument on behalf of the complainant, the complainant has set out a chronology of matters starting at paragraph 4.1 of the affidavit of the complainant with references to material times in bold type.
Perhaps one observation that might be made is that the subject land was and is in the grip of a ruinous drought. When I say “ruinous”, I mean that in all respects.
The complaints are, of course, a criminal prosecution made under the Justice Act. Whilst I appreciate the purpose of the legislation, the penalties can only be described as very sever. Furthermore, I observe those on the receiving of a complaint have to contend with a financially resourced complainant; satellite technology, reversal of the onus, in terms of section 67A of the Vegetation Management Act, and are further obliged to be subject to written interrogation under the Land Act 1994 through section 400V and Vegetation Management Act 199 section 51.
Assuming the questions asked are proper and lawful, these notices seem to help, in a significant way, facilitate proof with minimal physical exertion by a complainant. The paperwork is, of course, a deluge. As to the subject notices, for each notice there is the requirement itself, and an attachment “A”. All of these notices numbering around 10 relate to the road and the land surrounding it, and are dated either 2 September 2004, 3 September 2004, 3 November 2004 and 7 December 2004.
The road is situated within the land, as I have indicated previously. One might have thought a satellite image taken from outer space of the land as a whole would automatically show up any interference with the road going through it. (See also attachment “A” to the complainant’s affidavit.)
All subject notices referred to the alleged offices under either the Land Act or the said Integrated Planning Act. Whilst identity of those sought to be interrogated change, it
may be said that by the 3rd of September 2004 incriminating
evidence was being sought with respect to both the land and the road within it.
But it is clear the complainant knew information was available to the complainant with respect to both.
One such notice of the 3rd of September 2004 to N J Contracting Pty Ltd states inter alia:
“The following questions are aimed to collect information in relation to alleged offences under the Land Act 1994. The reason your company has been issued with this requirement is that investigators have reasonable belief that N J Contracting Pty Ltd may have information relating to an alleged offence on the Mitchell-Bollon Road and Tullundunna access road.”
The solicitors for the defendants struggled, it seems, to come to grips with all the issues and the questions arising. That is not a criticism. Anyone might, in all circumstances, struggle as such. The solicitors for the defendants’ interpretation took a certain view of the use of the words “reasonable belief” and in correspondence of 20 September 2004 personally inquired of the complainant in explicit terms, namely:
“Our clients have instructed us to advise you that they intend to comply with their obligations pursuant to the aforementioned legislation, but prior to doing so, we would be grateful if you could advise us as to the basis of your reasonable belief that a vegetation clearing offence has been committed on our clients’ property.”
The complainant personally responded by correspondence dated 22nd September 2004, and in particular in the following terms:
“The reasonable belief the Department has, has come from a study of satellite imagery, a field inspection of the property and collection of other information. The Department has verified that vegetation has been disturbed and therefore has a reasonable belief that an offence has been committed. Please note this is an alleged offence.”
The complainant’s response to the point raised by the defendants is, amongst other things, to provide affidavit material setting out a chronology of events. I consider this evidence to be admissible. It does, however, highlight the signposts along a somewhat meandering pathway from suspicion to reasonable belief and back again. (See example, line 165 of the complainant’s affidavit.)
I might, in all the circumstances, well accept this explanation and that would put an end to the matter. The response of the complainant, I point out, relates to both the land and the road passing through it. The response was dated
the 22nd of September 2004, and those relevant parts speak for itself, especially where quoted above.
One might wonder what more had to be done to launch a prosecution? What was the complainant waiting for, and why deluge the defendants with paperwork, although on this latter point, I am certainly cognisant of the complainant’s strenuous argument seeking to explain this issue. It may have something to do with the training or lack of it with respect to the complainant.
The view I have taken of this matter favours the defendants and not the complainant. Issues of who is the proper defendant in terms of responsibility might well have already been covered in the complainant’s reference to “other information”.
In my view, as at 22nd October 2004, time had run out, the last date to prosecute this being the 22nd of September 2004. This relates to both the land and the road passing through it.
The complainant had, in my view, prima facie proof of all the elements of the subject offences by the 22nd of September 2004. I reject completely the complainant’s explanation as not being credible in all the circumstances. It seems to me that
inaction and unnecessary delay is at the heart of things.
The question next arising is whether it would be just and equitable in all the circumstances to extend time. I should
point out that the original information that attracted attention came to light on the 7th of November 2003 when a member of the public reported “an area of vegetation had been
cleared on the subject land. Departmental officers studied satellite imagery of the area. This study confirmed that vegetation had been disturbed on the subject land.” (See annexure “A” to the complainant’s affidavit.)
It might be said that with respect to this date, the 7th of November 2003, was not particularly highlighted at all by the complainant as he had highlighted certain other dates in bold type. Apart from the implications of the ordinary meaning of the statement for both the road and the land, it suggests to me the complainant sat on its hands for several months and did very little to advance any prosecution. The complainant, of course, accuses the defendants of engaging in delaying tactics which in all circumstances I find unmeritorious.
No defendant should be left wondering for an excessive or unreasonable period of time, beyond that prescribed by law, whether or not he, she, or it, is to be prosecuted. The point has its basis, in my view, in the Magna Carta. Some may be a little bemused at this reference. The complainant is armed not
only with satellite technology, it also has all necessary financial support along with legislation that requires the defendants to submit to lengthy, and in some ways, repetitive interrogation. There seems such an imbalance in capacity, but that is the legislation.
I do not think it is just and equitable to extend time to the benefit of the complainant, having regard to the legislation, the Justices Act 1886, the purposes of the subject legislation in all the circumstances of the case. Difference cases may, of course, have different outcomes.
I should say that I derived little other than general, assistance from legal texts or other materials on the use of the phrase “just and equitable”, those texts being Words and Phrases Legally Defined, Australian Digest and Lexis Nexis Australia. Needless to say, the phrase has appeared on a multitude of occasion as a benchmark in corporate cases, property cases, succession cases, child support cases, to name a few.
In summary, then the outcome can only be that each of the subject complaints are struck out.
