Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 3) [2005] NSWLEC 328

Minister administering the Ports Corporatisation and Waterways Management Act 1995 v Hakim (No 3) [2005] NSWLEC 328

The defendant's no case to answer challenge failed because the stop work order was not invalid on any of the pleaded grounds: s 8(b) of the Interpretation Act 1987 permitted the reference to a person to include persons; the order was sufficiently broad to restrain work contravening or about to contravene s 22B, including work ancillary to excavation, in order to preserve the status quo; although the notice purported to commence on 3 February 2004, it took effect immediately upon service on 5 February 2004; and although it purported to last until a permit issued, s 22D(4)(c) limited it to three months, so it remained valid during the alleged offending period.

Jurisdiction
Australia
Judgment Date
07 February 2005
Procedural Posture
Prosecution for Alleged Failure to Comply With a Stop Work Order Contrary to S 22 D(1) of the Rivers and Foreshores Improvement Act 1948 / Interlocutory No Case to Answer Application After the Prosecution Closed Its Case
Outcome
The defendant's challenges to the form of the stop work order failed; the order was held valid for the period of the alleged offence.
Legal Topics
['no Case to Answer' 'stop Work Order' 'validity of Statutory Notice' 'service and Commencement of Notice' 'duration of Order' 'singular and Plural Statutory Expressions']
['practice and Procedure' 'criminal Prosecution' 'environmental and Waterways Regulation' 'statutory Interpretation'] ['no Case to Answer' 'stop Work Order' 'validity of Statutory Notice' 'service and Commencement of Notice' 'duration of Order' 'singular and Plural Statutory Expressions']

Case Brief

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Procedural Posture

Prosecution for Alleged Failure to Comply With a Stop Work Order Contrary to S 22 D(1) of the Rivers and Foreshores Improvement Act 1948 / Interlocutory No Case to Answer Application After the Prosecution Closed Its Case

Legal Issues

  1. 1 ['Whether the stop work order was invalid because it was addressed to M & Y Hakim rather than to a single person.' 'Whether an order requiring all works within 40 metres of the Mean High Water Mark to stop exceeded the power conferred by s 22D(1) of the Rivers and Foreshores Improvement Act 1948.' 'Whether the order was invalid because it specified 3 February 2004 as its commencement date although it was served on 5 February 2004.' 'Whether the order was invalid because it purported to remain in force until a part 3A permit was issued rather than for the maximum statutory period in s 22D(4).']

Ratio Decidendi

The defendant's no case to answer challenge failed because the stop work order was not invalid on any of the pleaded grounds: s 8(b) of the Interpretation Act 1987 permitted the reference to a person to include persons; the order was sufficiently broad to restrain work contravening or about to contravene s 22B, including work ancillary to excavation, in order to preserve the status quo; although the notice purported to commence on 3 February 2004, it took effect immediately upon service on 5 February 2004; and although it purported to last until a permit issued, s 22D(4)(c) limited it to three months, so it remained valid during the alleged offending period.

Court Disposition

The defendant's challenges to the form of the stop work order failed; the order was held valid for the period of the alleged offence.

Orders

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