Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where under this
Act any notice or order is served upon a person, or a person is authorised to
execute any works subject to conditions imposed, who at the time that notice
or order was served or authorisation was given was the owner of the land to
which it relates and that person ceases to be the owner of the land and proves
that any contravention of this Act was attributable, in whole or in part, to
the act or default of a subsequent owner having knowledge of that notice,
order or authorisation —
(a) the
subsequent owner may be brought before the court in the proceedings and found
liable in respect of the contravention; and
(b) the
original owner, on proof that the original owner took all reasonable
precautions to secure compliance with the notice, order or other requirement,
shall be acquitted of the contravention,
but in any other case
the original owner remains liable.
(2) Where a
contravention of this Act which has been committed by a body corporate is
proved —
(a) to
have been committed with the consent or connivance of; or
(b) to
be attributable to any failure to take all reasonable precautions to secure
that this Act should not be contravened by the body corporate on the part of,
any director, manager,
executive officer, secretary or other person concerned in the management of
the body corporate, or any person purporting to act in that capacity, that
person as well as the body corporate is guilty of the contravention.
(3) Where the affairs
of a body corporate are managed by its members, subsection (2) applies in
relation to the acts and defaults of a member in connection with the functions
of management of that member as if the member were a director of the body
corporate.
(4) Where proceedings
are taken against a person under this Act it is no defence for that person to
prove —
(a) that
the person was the agent or employee of any other person; or
(b) that
the person was acting in pursuance of an order or direction given by any other
person,
unless the court is
satisfied that the person had acted without the knowledge, and could not
reasonably be expected to have known, that this Act would be contravened.
(5) Where the employee
or agent of a person is found liable in respect of a contravention of this
Act, each person who, at the time of the commission of the contravention, was
the employer of that employee or the principal of that agent is also liable in
respect of the contravention, unless that employer or principal proves that he
or she could not by the exercise of reasonable diligence have prevented the
commission of the contravention by the employee or agent.
(6) Subject to this
section, it shall be a defence for any person who would otherwise be liable
under this Act to prove that —
(a) the
contravention occurred without the consent or connivance of that person;
(b) the
person had taken all reasonable precautions to secure that this Act should not
be contravened; and
(c) that
the person could not by the exercise of reasonable diligence have prevented
the contravention.
(7) Where, in
proceedings under this Act, it is necessary to establish the state of mind of
a body corporate, it is sufficient to show that a director, employee or agent
of the body corporate, being a director, employee or agent by whom the conduct
was engaged in within the scope of the person’s actual or apparent
authority, had that state of mind.
(8) Any conduct
engaged in on behalf of a body corporate —
(a) by a
director, employee or agent of the body corporate within the scope of the
person’s actual or apparent authority; or
(b) by
any other person at the direction or with the consent or agreement (whether
express or implied) of a director, employee or agent of the body corporate, if
the giving of the direction, consent or agreement is within the scope of the
actual or apparent authority of the director, employee or agent,
shall be deemed, for
the purposes of this Act, to have been engaged in also by the body corporate.
(9) Where, in
proceedings under this Act, it is necessary to establish the state of mind of
a person other than a body corporate, it is sufficient to show that an
employee or agent of the person, being an employee or agent by whom the
conduct was engaged in within the scope of the employee’s or
agent’s actual or apparent authority, had that state of mind.
(10) Conduct engaged
in on behalf of a person other than a body corporate —
(a) by
an employee or agent of the person, within the scope of the actual or apparent
authority of the employee or agent; or
(b) by
any other person, at the direction or with the consent or agreement (whether
express or implied) of an employee or agent of the first-mentioned person, if
the giving of the direction, consent or agreement is within the scope of the
actual or apparent authority of the employee or agent,
shall be deemed, for
the purposes of this Act, to have been engaged in also by the first-mentioned
person.
(11) A reference in
this section to the state of mind of a person includes a reference to the
knowledge, intention, opinion, belief or purpose of the person and the
person’s reasons for that intention, opinion, belief or purpose.
(12) If a defence to
proceedings under this Act involves an allegation that a contravention was due
to reliance on information supplied by another person or to the act or default
of another person, the accused is not, without leave of the court, entitled to
rely on that defence unless the accused has, not later than 7 days before
the day on which the hearing of the proceeding commences, served on the person
by whom the proceeding was instituted a notice in writing giving such
information that would identify or assist in the identification of the other
person as was then in the accused’s possession.
[Section 68 amended by No. 84 of 2004
s. 82.]