Citation: Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76
Court: New South Wales Court of Criminal Appeal
Date: 27 March 2007
Judge(s): Hunt AJA, Barr J, Johnson J
Background
The respondent, the Director-General of the Department of Natural Resources, brought a summary prosecution against the appellant company in the Land and Environment Court for an offence under legislation administered by that department. The summons, however, contained an internal inconsistency: the header named the Director-General of the Department of Planning as the prosecutor, while the body of the same document and a linked order served alongside it (made under s 246 of the Criminal Procedure Act 1986) correctly identified the Director-General of the Department of Natural Resources.
The error was not discovered until after the relevant limitation period for the prosecution had expired. The respondent then applied to amend the header of the summons to correct the name. The primary judge in the Land and Environment Court held that the summons was a nullity because the solicitor who issued it had no instructions to act for the person named in the header.
The primary judge nonetheless went on to grant leave to amend, treating the question of whether the mistake was misleading as a subjective one and placing an evidentiary burden on the defendant to show it had actually been misled. The appellant challenged both the nullity finding and the amendment analysis on appeal.
Legal Issues
- Whether the summons was a nullity because it named the wrong prosecutor in the header
- Whether the summons could be amended after the limitation period had expired
- Whether the applicable test under SCR Pt 20 r 4(3) for correcting a mistake in a party's name was objective or subjective
- Whether, if the test were subjective, an evidentiary onus fell on the defendant to demonstrate that it was actually misled or had genuine doubt about the prosecutor's identity
- Whether s 16(2) of the Criminal Procedure Act 1986 applied to proceedings of this kind, and whether it was excluded by the more specific amendment provisions in the rules
Decision
The summons was not a nullity. The Court held that the primary judge erred by failing to apply a wholly objective analysis to determine which Director-General a reasonable person would interpret the documents as identifying as the prosecutor. Both the summons and the s 246 order were prepared in the Crown Solicitor's Office and were necessarily linked documents that had to be read together. Read as a whole, the two documents clearly identified the Director-General of the Department of Natural Resources as the prosecutor, since that department administered the statute creating the offence. The solicitor who issued the proceedings had instructions from that Director-General, and there was accordingly no formal defect rendering the summons void.
The amendment test under SCR Pt 20 r 4(3). This provision permits amendment to correct a mistake in a party's name where the mistake was not misleading and did not cause reasonable doubt as to the identity of the person intended to be a party. The Court acknowledged that, while the objective nature of the mistake is the primary consideration, more than forty years of judicial practice had treated the provision as also allowing a subjective inquiry. The Court held it was too late to insist that only the objective test applied; the subjective reaction of the respondent to the application plays a very minor role.
No evidentiary onus on the defendant. The primary judge erred in holding that the defendant bore an evidentiary burden to produce evidence of actual confusion or reasonable doubt. There is no such onus. This error required the Court of Criminal Appeal to exercise its own discretion afresh on the amendment question.
Exercising that discretion, the Court permitted the amendment. The mistake was one of name, not identity. A reasonable recipient reading the summons together with the linked s 246 order would immediately recognise that two different prosecutors could not have been intended and would conclude, from the linked document, that the Director-General of the Department of Natural Resources was the intended prosecutor. The requirements of SCR Pt 20 r 4(3) were therefore satisfied, and the amendment was properly allowed. The Court also confirmed that s 16(2) of the Criminal Procedure Act, a provision allowing courts to disregard technical defects rather than to amend, was applicable to these proceedings and was not excluded by the existence of the separate amendment power in the rules.
Orders Made
- Leave to appeal is granted.
- The appeal is dismissed.
Key Takeaways
- A summons is not automatically a nullity merely because it names the wrong party in one part of the document, provided a reasonable person reading the whole document, together with any necessarily linked document, would identify who was intended to be the prosecutor.
- Under SCR Pt 20 r 4(3), the objective character of the naming mistake is the primary consideration when a court decides whether to allow amendment; the subjective reaction of the opposing party plays only a very minor role, but the Court of Criminal Appeal declined to hold that the purely objective test is the only permissible approach.
- No evidentiary onus rests on a defendant to lead evidence that it was actually misled or genuinely uncertain about the prosecutor's identity in order to resist an amendment application under SCR Pt 20 r 4(3).
- The Court of Criminal Appeal confirmed that s 16(2) of the Criminal Procedure Act 1986, a statutory disregard provision for technical defects, applied to summary proceedings in the Land and Environment Court and was not displaced by the court's separate amendment powers under the rules.
- In dismissing the appeal, the Court emphasised that procedural provisions such as ss 16, 21 and 40 of the Criminal Procedure Act exist to prevent proceedings from being defeated on technical grounds, and broad words in s 15(1) of that Act should not be construed so as to exclude them.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 15, 16, 21, 40, 43, 246
- Land and Environment Court Act 1979 (NSW), s 43
- Native vegetation Conservation Act 1997 (NSW)
- Crimes Act 1900 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Interpretation Act 1987 (NSW)
- Justices Act 1902 (NSW)
- Supreme Court Rules, Pt 20 r 4(3), Pt 75
- Uniform Civil Procedure Rules
Key Cases:
- Re Pritchard [1963] 1 Ch 502
- Davies v Elsby Bros Ltd [1961] 1 WLR 170
- Mitchell v Harris Engineering Co Ltd [1967] 2 QB 703
- Rodriguez v RJ Parker (a male) [1967] 1 QB 111
- Lloyd Steel Co (Aust) Pty Ltd v Jade Shipping SA (1985) 1 NSWLR 212
- Brandsma Crockett v Heindal Pty Ltd (2002) 26 WAR 323
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Ex parte McAuley; Re Cam (1944) 44 SR 258
- Parmeter v Proctor (1949) 66 WN 48
- Garrett v Freeman [2006] NSWLEC 332; [2006] NSWCCA 278