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Gerhardt v McNeil

 

[2016] QCA 207

 

SUPREME COURT OF QUEENSLAND

CITATION:

Gerhardt v McNeil [2016] QCA 207

PARTIES:

GERHARDT, Trevor William
(applicant)
v
McNEIL, Lea-Ann
(respondent)

FILE NO/S:

CA No 126 of 2016

DC No 4256 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2015] QDC 270

DELIVERED ON:

23 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

12 August 2016

JUDGES:

Fraser and Gotterson and Philip McMurdo JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

  1. Extend time within which to apply for leave to appeal against the judgment of the District Court given on 3 November 2015 until 13 May 2016.
  2. Grant leave to appeal against that judgment.
  3. Allow the appeal and set aside the orders made in the District Court.
  4. Set aside the convictions of the applicant in the Magistrates Court on 1 October 2014 and any further order made against the present applicant in that proceeding.
  5. Order the respondent to pay the applicant’s costs of this application and of the proceeding in the District Court.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where in October 2014 the applicant was convicted and fined for two contraventions of s 83(1)(b) of the Building Act 1975 (Qld) (“Building Act”) in the Magistrates Court – where a subsequent appeal to the District Court was dismissed in November 2015 – where in April 2016 the court delivered reasons in an unrelated matter, to which the applicant was a party, construing s 83(1)(b) Building Act in a different manner to that adopted in the courts below – where in May 2016 the court delivered reasons in another proceeding, arising from the same factual scenario giving rise to the subject convictions, finding that the applicant did not contravene s 83(1)(b) Building Act – where the court’s judgments demonstrate the applicant did not contravene s 83(1)(b) Building Act but his convictions remain on the record of the courts below – where the applicant applies for an extension of time within which to apply for leave to appeal against the judgment of the District Court – where the respondent contends that, notwithstanding the judgments of this court, the applicant has not satisfactorily explained his delay in seeking leave and, in any event, the principle of finality dictates that the convictions should remain undisturbed – whether the application should be allowed

Building Act 1975 (Qld), s 83, s 83(1)(b)

Brisbane City Council v Gerhardt (2016) 214 LGERA 83; [2016] QCA 76, cited

Gerhardt v Queensland Building and Construction Commission [2016] QCA 136, cited

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, considered

Montero v The Queen (2013) 234 A Crim R 532; [2013] NSWCCA 214, cited

R v Unger [1977] 2 NSWLR 990, cited

COUNSEL:

P R Smith for the applicant

R D Cartledge (sol) for the respondent

SOLICITORS:

No appearance for the applicant

Brisbane City Legal Practice for the respondent

[1] FRASER JA:  I agree with the reasons for judgment of Philip McMurdo JA and the orders proposed by his Honour.

[2] GOTTERSON JA:  I agree with the orders proposed by Philip McMurdo JA and with the reasons given by his Honour.

[3] PHILIP McMURDO JA:  The applicant is a private certifier (Class A) under the Building Act 1975 (Qld) (“the Act”).  In August 2012 he granted a development permit for building work to be performed at a house in Annerley.  The respondent, the Brisbane City Council, claimed that the applicant contravened s 83(1)(b) of the Act in granting that permit.  It caused two charges[1] to be brought against the applicant and by a judgment given on 1 October 2014, a magistrate convicted the applicant, imposed a fine of $5,000 and ordered that the convictions be recorded.

[4] The applicant appealed against that judgment to the District Court under s 222 of the Justices Act 1886 (Qld).  The appeal was heard in July and August 2015 and a judgment was delivered by the court on 3 November 2015.  The appeal was dismissed with costs.

[5] On 13 May 2016, the present application was filed in this court, seeking an extension of time within which to apply for leave to appeal against the judgment of the District Court.  The application is made upon the basis of two recent decisions of this court in other proceedings to which the applicant was a party.  It is common ground that according to those judgments, the applicant should not have been convicted of the subject charges.  However the respondent opposes this application, arguing that the applicant has not demonstrated a satisfactory explanation for his delay in seeking leave to appeal and that the principle of finality in litigation favours the judgments of the Magistrates Court and District Court in this case being left undisturbed.

[6] Section 83(1) of the Act relevantly provides as follows:

“83General restrictions on granting building development approval

(1)The private certifier must not grant the building development approval applied for –

(a)

(b)until all necessary preliminary approvals under the Planning Act are effective for other assessable parts of the development; and …

(c)

(d)if, under the Planning Act, a concurrence agency has jurisdiction for a part of building assessment work –

(i)that part has been assessed by the concurrence agency, under the building assessment provisions; and

(ii)if the concurrence agency is the local government – any security it has required for the carrying out of the building work has been given;

Maximum penalty – 165 penalty units.”

The ‘Planning Act’ is the Sustainable Planning Act 2009 (Qld).

[7] Although the applicant, as an accredited private certifier, is able to assess proposed building work, in some cases the work must also be assessed by a council, such as the respondent, in order to ensure that the development would comply with the council’s planning scheme.  Until the two decisions of this court upon which the applicant relies, the respondent’s view was that in such cases it was required to assess the development in the context of an application made to it for a preliminary approval under s 241 of the Planning Act.  The respondent’s view came from a certain interpretation of s 83(1)(b), namely that although here the Planning Act may not require the issue of a preliminary approval, such an approval was required by s 83(1)(b) itself.  Thus in cases such as the present, the respondent had maintained that a private certifier must not grant a building development approval until a preliminary approval under the Planning Act had been sought from and granted by it.

[8] In what I will call the April judgment, this court held that the Council’s interpretation of s 83 was incorrect.[2]  That case involved a permit which had been granted by the applicant for certain work at Wooloowin.  The applicant’s position in that case was that the respondent was a “concurrence agency” under the Planning Act and, in that capacity, was to consider whether the development complied with its planning scheme, but that it was unnecessary for a preliminary approval under the Planning Act to be sought or issued.  The applicant further contended that in that case, the respondent as the concurrence agency was deemed to have assessed the proposed work and have had no objection to it.  The applicant commenced that proceeding in the Planning and Environment Court seeking declarations to that effect.  Searles DCJ accepted those arguments and made declarations accordingly.  In the April judgment, this court effectively upheld that reasoning.  It may be noted that the judgment of Searles DCJ was considered by the District Court in the present matter but it was held to be distinguishable.

[9] In the present matter, the District Court accepted the respondent’s argument, later rejected by this court in the April judgment, that in such cases a preliminary approval from the respondent was required.  It was thereby held that offences had been committed in contravention of s 83(1)(b).

[10] The second of this court’s recent judgments, which I will call the May judgment, involved the same development permit (for the Annerley house) which is the subject of the present application.[3]  In August 2013, the Queensland Building and Construction Commission had decided that the applicant had engaged in unsatisfactory conduct in that he had contravened s 83(1)(b).  The applicant successfully applied to a member of the Queensland Civil and Administrative Tribunal (QCAT) to have the Commission’s decision set aside.  But the QCAT Appeal Tribunal allowed an appeal from that decision, holding that a preliminary approval from the Council was necessary.  The case came to this court by an application (by the present applicant) for leave to appeal against the decision of the QCAT Appeal Tribunal.  In the May judgment, a differently constituted court applied the reasoning in the April judgment, rejecting the argument that a preliminary approval from the Council was required.  Morrison JA (with whom Philippides JA and North J agreed) concluded that:

[55]In so far as the reasoning by the Appeal Tribunal turned on the necessity for a preliminary approval, it was in error.”

Morrison JA considered whether in the case of this Annerley approval, the respondent was a “concurrence agency”.  The applicant argued that it was not, but the court held otherwise.[4]  Consequently, as in the development the subject of the April judgment, the respondent’s role was to assess the proposal against its planning scheme, as a concurrence agency.[5]  Unlike the position in the April judgment, the respondent had not been given an opportunity to carry out that assessment, because the applicant had considered that for the Annerley development, the respondent had no assessment role at all.  It was held that the applicant’s stance was in error.[6]  Consequently, this court held, the applicant had been prevented from issuing the Annerley approval, not by s 83(1)(b) but by s 83(1)(d).[7]

[11] As the respondent concedes, according to the reasoning in the April and May judgments, the applicant did not commit the offences as charged.  No preliminary approval by the respondent was required for the Annerley development and consequently there was no contravention of s 83 by issuing the development permit in the absence of such an approval.  The charges against the applicant were expressly limited to s 83(1)(b) and did not extend to s 83(1)(d).  A limitation period now precludes such an offence being charged, if the present convictions are set aside.

[12] I go then to the relevant considerations for the present application, the first of which is the delay in seeking leave to appeal.  The reason for the applicant’s delay is apparent: it was only after the April judgment that he was sufficiently confident of his prospects of challenging the interpretation of s 83(1)(b) which the magistrate and the judge had accepted in the present case.  He did have the judgment of Searles DCJ, which ought to have indicated the correct interpretation.  His explanation for his delay, whilst apparent, is not of itself compelling.

[13] Of course that is not the only consideration.  The applicant argues he would suffer substantial prejudice by his convictions remaining on the record, because of their adverse impact upon his professional reputation and therefore his livelihood.  That must be accepted.  And as he also argues, there is no suggested prejudice to the respondent or any other party from these convictions being set aside.

[14] The applicant further argues that as there are now conflicting decisions of courts on the interpretation of s 83, the result would be “confusion and uncertainty in the building certification industry and local government [tending] to bring the administration of criminal justice into disrepute”.[8]  That is a misstatement, because the proper interpretation of s 83 is now clear from the unanimous opinions expressed in the April and May judgments.

[15] Nevertheless there is an undesirable inconsistency between the subject judgment of the District Court and this court’s May judgment.  As things presently stand, the record of the District Court would show the applicant to have committed offences against s 83(1)(b) for approving this work at Annerley.  But in the May judgment, this court held otherwise.  There is a determination by this court of the applicant’s innocence of the charges of which he was convicted, yet his convictions stand.  It is desirable that this tension between the records of two courts be remedied.

[16] The respondent argues that the most important consideration here is the principle of finality.  As is submitted, although the present judgment was wrongly decided, that does not nullify the convictions.  The respondent cites the judgment of Leeming JA in Montero v The Queen,[9] who there said that it was “well established that a change in the law, even a change whose effect is that a conviction would be quashed on appeal, is not of itself sufficient to warrant the granting of an extension of time in which to appeal [this being] an aspect of the principle of finality.”  His Honour remarked that “it may seem hard for a conviction to be permitted to stand when it is based upon a superseded view of the common law or upon an Act or regulation which has later been held to be invalid”, but said that there are “broader issues which are involved” which, he said, were explained in this passage of the judgment of Street CJ in R v Unger:[10]

“This concept of merger is no blind, arbitrary proposition.  It is founded deeply in the fabric of the philosophy of the common law.  Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context.  Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions.  Indeed the process of appeal, either civil or criminal, is a comparatively recent and statutory concept – it finds no basis in the common law itself.  This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved.  The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon CJ referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law.”

[17] The respondent’s argument in characterising the present case as one arising from “a change in the law”[11] misstates the position.  The argument identified no judgment which had interpreted s 83(1)(b) as the courts in the present case did.  In the written submissions for the respondent, it is said that at the time of the convictions in question, “the application of s 241 of the Sustainable Planning Act 2009 to the assessment of amenity and aesthetic aspects of a development application was that a preliminary approval be granted by [the] Council prior to a Building Certifier issuing a development approval for the building work,” which is said to be “clearly demonstrated” by decisions of this court and the Planning and Environment Court.[12]  Each of them was a case arising from an application for a preliminary approval under s 241 of the Planning Act.  However none of them involved the interpretation of s 83.  The April and May judgments did not affect the operation of s 241 of the Planning Act or in some other way affect the availability or utility of a preliminary approval.  Those judgments decided that, contrary to the respondent’s view and practice, s 83(1)(b) did not require the issue of a preliminary approval in cases such as the present one.  There was therefore no “change in the law”.

[18] Nevertheless the principle of finality is an important consideration in considering the present application.  The purposes served by that principle are broader still than those identified by Street CJ in the passage set out above.  In Kentwell v The Queen[13] French CJ, Hayne, Bell and Keane JJ identified some of the other considerations which could be relevant to reopening a conviction in consequence of “the correction by a court of authority of a misconception as to the state of the law.”[14]  They said:[15]

“The review of an old conviction may raise consideration of the capacity to hold a new trial that is fair to both sides.  For example, witnesses may no longer be available and exhibits may have been lost or destroyed.  Reopening a conviction for an offence of violence may occasion acute stress to the victim, including by the prospect of being required to give evidence again.”

Kentwell was a case concerning the proper approach to reopen a sentence, rather than a conviction, as a result of the removal of a misconception as to the law by a later decision and their Honours said that the case did not “provide the occasion to consider the issues raised by an application to extend time in which to challenge a conviction” in that circumstance.[16]  Therefore the court left open the question of whether a line of English decisions,[17] which had held that a conviction will be reopened in this circumstance only where there is a “substantial injury” or “substantial injustice”, should be followed in this country.

[19] In general, it should be accepted that the circumstance that a conviction was obtained upon a misconception of the law, as later corrected by an authoritative judgment, does not entitle the person convicted to an extension of time in which to appeal against the conviction.  What must be demonstrated is that having regard to all relevant considerations, of which the principle of finality is one, the interests of justice favour the extension of time which is sought.

[20] In my view the unusual circumstances of the present case should result in the time being extended, the appeal being allowed and the convictions being set aside.  There is not only the prejudice to the applicant from the convictions standing and the lack of any prejudice from setting them aside: there is also the very unusual circumstance of the conflict of two judgments, one holding that the applicant committed these offences and the other, the May judgment of this court, holding that he did not.  It may be that the applicant did commit offences, not as charged but in contravention of s 83(1)(d).[18]  Be that as it may, absent the orders sought, there would remain the unusual and undesirable conflict between two judgments.

Orders

[21] I would order as follows:

(1)Extend time within which to apply for leave to appeal against the judgment of the District Court given on 3 November 2015 until 13 May 2016.

(2)Grant leave to appeal against that judgment.

(3)Allow the appeal and set aside the orders made in the District Court.

(4)Set aside the convictions of the applicant in the Magistrates Court on 1 October 2014 and any further order made against the present applicant in that proceeding.

(5)Order the respondent to pay the applicant’s costs of this application and of the proceeding in the District Court.

Footnotes

[1] The charges were identical, save that they related to different parts of the proposed building work.

[2] Brisbane City Council v Gerhardt [2016] QCA 76.

[3] Gerhardt v Queensland Building and Construction Commission [2016] QCA 136.

[4]Ibid at [28]-[43].

[5] Ibid at [44]-[46].

[6] Gerhardt v Queensland Building and Construction Commission [2016] QCA 136 at [48].

[7] Ibid at [50]-[54].

[8] Applicant’s outline of submissions para 1.

[9] (2013) 234 A Crim R 532, 534-536; [2013] NSWCCA 214 at [2], [5].

[10] [1977] 2 NSWLR 990, 995-996.

[11] Montero at [2].

[12] For which the submission cited Leach & Ors v Brisbane City Council [2011] QPEC 55; De Marco v Brisbane City Council & Ors [2015] QPEC 55; Hankamer & Ors v Brisbane City Council & Anor [2013] QPEC 28; Lynch v Brisbane City Council [2010] QPEC 137; Thurecht & Anor v Brisbane City Council [2015] QPEC 19; Guiney v Brisbane City Council [2016] QPEC 26; Mariott v Brisbane City Council [2015] QPEC 45; Lucas v Brisbane City Council [2015] QPEC 25; Metroplex Management P/L v Brisbane City Council & Ors [2010] QCA 333.

[13] (2014) 252 CLR 601; [2014] HCA 37.

[14] Kentwell v The Queen (2014) 252 CLR 601, 612; [2014] HCA 37 at [28].

[15] (2014) 252 CLR 601, 613; [2014] HCA 37 at [29].

[16] Ibid.

[17] R v Hawkins [1997] 1 Cr App R 234, 240-241; R v R [2006] EWCA Crim 1974; [2007] 1 Cr App R 10, 161 [30]; R v Jawad [2013] EWCA Crim 644; [2013] 1 WLR 3861, 3873 [29]; R v Bestel [2014] 1 WLR 457, 475 [31].

[18] That would seem to follow from the reasoning in the May judgment, although it was apparently rejected in the submissions for the respondent in the present application.

Close

Editorial Notes

  • Published Case Name:

    Gerhardt v McNeil

  • Shortened Case Name:

    Gerhardt v McNeil

  • MNC:

    [2016] QCA 207

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Gotterson JA, McMurdo JA

  • Date:

    23 Aug 2016

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2015] QDC 270 03 Nov 2015 -
Appeal Determined (QCA) [2016] QCA 207 23 Aug 2016 -

Appeal Status

{solid} Appeal Determined (QCA)