Citation: Luy Tien Le v Rockdale Council [2007] NSWDC 187
Court: District Court of New South Wales
Date: 19 July 2007
Judge(s): Nicholson SC DCJ
Background
Rockdale Council issued an order under s 124 of the Local Government Act 1993 requiring compliance with certain directions relating to a property. The notice was addressed to a company, Llaustrus Pty Limited, and sent to that company care of the appellant, who was the occupier of the premises. The company, it later emerged, was no longer in existence at the time the notice was served.
When the order was not complied with, Council issued a Court Attendance Notice against the appellant personally, alleging he had failed to comply with the order. The Local Court at Sutherland convicted the appellant in October 2006. The appellant, who was self-represented, appealed that conviction to the District Court.
Legal Issues
- Whether the appellant, as occupier and the person named "care of" on the envelope, was the person upon whom the s 124 notice had been served
- Whether a failure to serve the notice on the appellant personally was fatal to the prosecution under s 628(1) of the Local Government Act 1993
- Whether the Court Attendance Notice could be amended to substitute a different defendant
Decision
The District Court found that the s 124 notice was plainly addressed to the company, not to the appellant. Sending correspondence to a company "care of" an individual does not constitute service on that individual. The court observed that people are not always in a position to open mail addressed to others, even when it arrives at their address.
Critically, the notice not only imposed obligations but also vested rights in the person served. Those rights were vested in the company as the named recipient, not in the occupier through whose address the notice was delivered. The appellant therefore had no legal standing as the person served, and no obligation to comply could flow to him under s 628(1), which expressly requires that the failure be by the person to whom the order was given.
The court also found that no evidence had been led before the magistrate connecting the appellant to the company, or establishing that he was in fact the owner of the property. It remained entirely unproven that the occupier and owner were the same person.
The court held there was no power to amend the Court Attendance Notice to cure the defect, because any such amendment would have substituted an entirely different party as defendant. The conviction was therefore unsustainable from the outset.
Orders Made
- Conviction appeal upheld
- Conviction quashed
- Penalty and costs orders imposed by the Local Court quashed
Key Takeaways
- Under s 628(1) of the Local Government Act 1993, a prosecution for failure to comply with a council order can only be maintained against the person upon whom the original order under s 124 was served.
- Addressing a notice to a company "care of" an individual does not constitute service of that notice on the individual; the rights and obligations created by the notice vest only in the named recipient.
- A Court Attendance Notice cannot be amended to substitute a different party as defendant where the proposed amendment would effectively replace the person originally served with an entirely different person.
- The District Court confirmed that the prosecution bore the onus of establishing, through evidence, that the occupier and owner were one and the same person. Mere inference or assumption was insufficient.
- Where the foundational notice in a regulatory prosecution is not served on the person ultimately charged, the conviction fails from inception, regardless of whether the charged person may have had informal awareness of the notice.
Legislation and Cases Referenced
Legislation:
- Local Government Act 1993 (NSW), s 124 (power to order a person to do or refrain from doing specified things)
- Local Government Act 1993 (NSW), s 628(1) (offence of failing to comply with an order)
Cases cited: No cases were cited in the judgment.