Byron Shire Council v The Rising Damp Corporation Pty Limited

Land and Environment Court (NSW)|1998-10-22|Before: Talbot J, Priestley JA, Sheller JA, Pearlman J, Bignold J

CITATION : Byron Shire Council v The Rising Damp Corporation Pty Limited [2001] NSWLEC 260 PROSECUTOR Byron Shire Council PARTIES : DEFENDANT The Rising Damp Corporation Pty Limited FILE NUMBER(S) : 50086 of 2000 CORAM: Talbot J KEY ISSUES: Prosecution :- company carrying out development - whether relevant knowledge of the development proved - circumstantial evidence - accessorial liability - vicarious liability Environmental Planning and Assessment Act 1979 s 4, s 76A, s 76A(1), s 125, s 125(1) LEGISLATION CITED: Evidence Act 1995 s 97 Land and Environment Court Act 1979 s 55 Byron Shire Local Environmental Plan 1988 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1; Burrell v Jacenko (1998) 99 LGERA 173 ; Chamberlain and Another [No. 2] v The Queen (1983 - 1984) 153 CLR 521; Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 ; Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481; Environmental Protection Authority v ADI Limited (Talbot J, NSWLEC, 22 October 1998, unreported); Environmental Protection Authority v ADI Ltd [1999] NSWLEC 14, unreported; Giorgianni v The Queen (1985) 156 CLR 473 ; Gosford City Council v Popran Creek Pty Ltd and Polo (1995) 89 LGERA 208; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1988) 103 LGERA 355; Holroyd City Council v Murdoch (1994) 82 LGERA 197;; Bahri Kural v The Queen (1987) 162 CLR 502 ; Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304; Murdoch v Holroyd City Council (Priestley JA, Sheller JA, Cohen AJA, NSWCA, 20 November 1996, unreported).; Pereira v Director of Public Prosecutions (1988) 82 ALR 217 ; CASES CITED: Performing Right Society Limited v Ciryl Theatrical Syndicate Limited (1924) 1 KB 1; R v Randall Barrie Von Snarski [2001] QCA 71, unreported; Rao v Canterbury City Council (2000) 112 LGERA 360; Regina v Shorrock (1994) QB 279 ; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 ; Saad (1987) 29 A Crim R 20 ; Sedleigh-Denfield v O'Callaghan and Others (1940) AC 880; Shepherd v The Queen (1990) 170 CLR 573; South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202; South Sydney City Council v Spanos Enterprises Pty Ltd and Ors (Pearlman J, NSWLEC, 8 July 1998, unreported); Tesco Supermarkets Ltd v Nattrass (1972) AC 153; The Corporation of the City of Adelaide v The Australasian Performing Right Association Limited (1928) 40 CLR 481 ; The Council of the City of South Sydney v Kurtonal, and Ors (Bignold J, NSWLEC, 12 February 1997, unreported); Universal Telecasters (Qld) Ltd v Guthrie (1977) 18 ALR 531 ; Von Lieven v Stewart; Kemish v Godfrey and Another (1990) 21 NSWLR 52 ; Wright and Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 DATES OF HEARING: 24/09/2001, 25/09/2001, 26/09/2001, 25/10/2001, 26/10/2001, 31/10/2001 (final written submissions) DATE OF JUDGMENT: 11/30/2001

PROSECUTOR Mr B J Preston SC with Ms LM Byrne (Barrister) SOLICITORS Elliot & Sochacki LEGAL REPRESENTATIVES: DEFENDANT Mr M Gelbert (Barrister) SOLICITORS Wroth Wall

IN THE LAND AND Matter No. 50080 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 30 November 2001

Byron Shire Council Applicant v The Rising Damp Corporation Pty Limited Respondent

These are class 5 proceedings whereby Byron Shire Council ("the council"), as prosecutor, alleges that the defendant company on or about 31 December 1999 at lot 9 Newes Road, Coorabell carried out development on land for which development consent is required without obtaining development consent contrary to s 76A(1) and s 125(1) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act").

The development has been particularised as the use of the land for a public dance party.

The land is in Zone No. 1(a) (General Rural Zone) under the Byron Local Environmental Plan 1988 ("the LEP"). Development consent is required for any purpose other than agriculture, bushfire hazard reduction, dwelling houses and forestry.

There is no evidence of any development consent granted in respect of the land described as lot 9 in DP 248897 known as 9 Newes Road, Coorabell ("the subject land") .

Statutory records show that the current registered office of the defendant company is at an address in Carlton, Victoria, whereas since 19 October 1999 the current principal place of business is recorded as the subject land.

The sole director and secretary of the company is John Christopher Anderson whose address is shown as the subject land.

Mr Anderson is also the holder of the only two shares issued by the company.

The evidence discloses, and the defendant has not disputed, that Mr Anderson is also known as Fast Buck$. By an Instrument Evidencing Change of Name dated 4 July 1985 and a further Instrument Evidencing Change of Name dated 19 January 1990, both registered in the office of the Registrar General, Mr Anderson abandoned the name of Fast Buck$ and in lieu thereof assumed the name of John Christopher Anderson.

The hearing took place over five days. Mr Preston SC, with Ms Byrne, instructed by Andrew Nicholas Sochacki, appeared for the prosecutor and Mr Gelbert, instructed by Wroth Wall, represented the defendant. In the course of the hearing it became evident that Mr Sochaki had previously acted for Mr Anderson. Mr Gelbert raised a question about conflict of interest. After being given the opportunity to consider his position Mr Sochaki withdrew as solicitor on the record and Mr Preston and Ms Byrne were thereafter instructed directly by an officer employed by the prosecutor.

After the conclusion of the hearing the defendant, itself, filed a notice of motion seeking leave to reopen for the purpose of the Court receiving and taking into account a further written submission from Mr Anderson as the director of the defendant. In a supporting written statement Mr Anderson explained that the company had dispensed with the services of Mr Gelbert. At or about the same time Wroth Wall, the solicitors on record for the defendant, filed a notice of ceasing to act. On the return date of the notice of motion, namely 31 October 2001, the company did not appear. Mr Preston appeared with Ms Byrne. By then further written submissions had been filed in the registry of the Court by Mr Anderson in his capacity as a director of the defendant. After being afforded the opportunity to peruse the further written submissions Mr Preston advised the Court that the prosecutor raised no objection to the Court taking into account the further written submissions. Accordingly, leave was granted for the defendant to reopen its case and the further written submissions were received.

Although many of the facts referred to therein are otherwise alluded to in this judgment it is helpful to refer to a Statement of Agreed Facts tendered as evidence. A copy is attached to these reasons.

The prosecutor contends, correctly in the Court's view, that it must establish the following elements to prove the offence: - (i) Use of the land was development in terms of the Act;

(ii) The development required consent; (iii) Consent was not obtained; (iv) The development was carried out on the land; and (v) The defendant is liable for the conduct of offending against the prohibition on the carrying out of development without consent.

There are a number of factual similarities to the circumstances relied upon by the Court when it accepted that development had taken place in South Sydney City Council v Paul Dainty Corporation Pty Ltd and the Sydney Cricket and Sports Ground Trust (1992) 75 LGRA 202, Gosford City Council v Popran Creek Pty Ltd and Polo (1995) 89 LGERA 208 and to a lesser extent in South Sydney City Council v Spanos Enterprises Pty Ltd and Ors (Pearlman J, NSWLEC, 8 July 1998, unreported).

The evidence establishes that the event was a dance party to which the public was invited. It involved the playing of a type of techno music described as "doof" over a period of 24 hours in an open field or paddock. Food and beverages were available for patrons. Facilities provided included portable toilets, marquees, tents, wigwams, scaffold structures for lighting, sound equipment, artistic structures, a power generator plant and large satellite dishes. There was a main sound tent containing electrical instrumentation comprising mixing equipment, CD players and turntables. Pamphlets advertising the event as "Milleni-Yum" and tickets were available from shops in Byron Bay. Publicity took place through the internet, advertisements in the local newspaper and shop windows, distribution of brochures and by word of mouth. Pre-sold tickets were $45 and tickets were on sale at the gate for $50. The fact that tickets were available for purchase in the town of Byron Bay and at the gate during the course of the event demonstrate that the event was open to the public.

The scale of the event required significant planning and organisation. Physical works of transportation, erection and installation of equipment took place over the period between 26 December 1999 and 31 December 1999. It is claimed by the organizers that about 300 people worked as crew and 3500 patrons were expected. The open invitation by advertisement, the payment of a substantial fee and the number of persons attending the event leaves no support for the defendant's contention that the council has not proved beyond reasonable doubt that the function was a public event.

Originally the organisers proposed the event take place at Myocum. Due to the intervention by the council, the owners of the Myocum property withdrew their permission for the use of their land for the purposes of the event. As a result, the doof party was re-located to the subject property and took place on 31 December 1999 until the police intervened and closed the party during the afternoon of 1 January 2000.

The Court concludes that the nature and extent of the event establishes beyond reasonable doubt that it constituted development within the meaning of s 4 of the EP&A Act ( Paul Dainty, Popran Creek and Spanos ).

Under the provisions of the LEP the only development permissible on the subject property with development consent is development other than development which is permissible without consent or which is prohibited under the LEP. The development does not fall within the category of uses permissible without development consent, nor is it prohibited.

The Court finds that pursuant to the provisions of the LEP development consent was required. The evidence confirms, and it is not disputed, that development consent was not obtained.

The prosecutor concedes that depending on the particular facts and circumstances of any development application, development of the nature of a doof party may be permissible within the zone with development consent from council, subject to the imposition of conditions. Having regard to the nature of the charge, the fact that development consent was not obtained is sufficient to establish that the offence occurred.

The Court is satisfied beyond reasonable doubt that by the use of the land for a public dance party development was carried out on lot 9 in DP 248897 known as 9 Newes Road, Coorabell without development consent being obtained as required by the LEP.

The prosecutor contends the defendant was in ownership, possession and occupation of the land and in a position to control what occurred on the land at the relevant dates.

Apart from its registration as proprietor of a freehold estate in the subject land and the identification of the subject land as the principle place of business of the company there is no direct evidence that the corporate entity, The Rising Damp Corporation Pty Limited, was complicit in the preparations for and conduct of the doof party which took place on 31 December 1999 through to 1 January 2000.

The prosecutor relies upon the following to prove that the defendant is liable for the conduct of offending against the prohibition by the carrying out of development without consent:-

(1) There is no evidence that any person held a leasehold estate in the land. No person, other than the defendant, was in or had a right to be in possession of the land at the relevant time;

(2) The conduct of the defendant through its representative, Mr Anderson. He regularly entered the property at will storing plant, equipment and effects on the land, caused the carrying out of regular maintenance on buildings, caused the fields to be slashed with a tractor and slasher and employed persons to carry out work and maintenance on the land. The conduct is inconsistent with any other person having a legal right to exclusive possession of the land; (3) At its highest, the evidence discloses that there may have been persons living on part of the subject land, namely the main house, as licensees or lodgers. Nevertheless, the defendant's possession of the land was thereby not excluded as licensees have no proprietary interest in the land or right to exclusive possession of the land or even of the house; (4) That at various times statements have been made in writing that Mr Anderson, the only office holder of the company, resides at Coorabell and in some cases specifically lot 9 Newes Road, Coorabell; (5) Even if Mr Anderson resided at times on land other than the subject land, which the Court is satisfied beyond reasonable doubt did occur, the mere fact that the office holder does not reside on the land does not disprove that the company occupied the land; (6) Articles and letters in the local newspaper concerning Mr Anderson and his alleged involvement in the arrangements for the subject event and other dance parties; (7) The appearance of Mr Anderson at the subject land on 1 January 2000 at about 1:15pm; and (8) The previous conduct of Mr Anderson in support of dance parties.

Although the prosecutor has successfully shown beyond reasonable doubt that Mr Anderson had a close association with the land and clearly personally carried out activities of various kinds thereon from time to time, it needs to be shown that Mr Anderson was acting specifically in his capacity as a director, shareholder or agent of the defendant or in some other way that enables the Court to attribute his actions to the defendant.

The evidence upon which the prosecutor relies to show that the defendant is primarily liable involves direct circumstantial and tendency evidence.

Michael John MacDonald is the editor of a local newspaper, the Byron Shire Echo.

On 5 January 2000, Mr MacDonald wrote an article in the newspaper under the heading "Doofs disturb, Buck$ blasts Council". Although Mr MacDonald told the Court that the material in the article was extracted from press releases issued by Fast Buck$, he now has no independent recollection of the contents of the press release. He explained that two press releases referred to in the article were received by facsimile and bore the signature of Fast Buck$ which he recognised.

Although direct quotations from the press releases by Fast Buck$ make reference to the Millenni-Yum doof party there is nothing in the newspaper article to implicate the company. Fast Buck$ refuted any personal involvement in the following terms:- I had no financial stake in the event and did not even attend it…

In cross-examination Mr MacDonald recognised that Mr Anderson and Fast Buck$ are the same person and that he is well known in the district as "a form of social commentator", a frequent contributor to the Echo newspaper and a former "office holder" and councillor of the Byron Shire Council.

Mr MacDonald gave evidence that an organisation named Happy People Productions has placed dance party advertisements with the Echo newspaper over the last five years including "Millenni-Yum Doof at Mr Buck$' property" . Mr MacDonald told the Court that Mr John Oakley, who has been the IT specialist for the newspaper, was involved in "the technical nature of setting up the dance party" . Moreover, part of the material which is contained in the newspaper article published on 5 January 2000 was provided by Mr Oakley as a response in relation to the Millenni-Yum doof.

Mr MacDonald attended the doof party on the subject land. He did not see Mr Anderson at the party. He was not able to deduce who was running the event. A person he did not recognise was collecting money at the gate. 34. Mr Anderson never told Mr MacDonald that he staged the event at Coorabell or that he derived any benefit from it.

In cross-examination Mr Gelbert drew Mr MacDonald's attention to a statement in the article published on 5 January 2000 as follows:- …while the Millenni-Yum party, hosted at the eleventh hour by former councillor Fast Buck$, drew the anger of Coorabell residents. 36. The following exchange then took place:- Q. Sir did Mr Fast Buck$ or Anderson tell you he hosted this party? A. No.

Q. What journalistic right did you have to tell your readers that he was? A. It was merely my description of the -

Q. What journalistic right did you have to tell your readership that Mr Fast Buck$ hosted this party when you had no evidence to suggest that? A. I'm unaware of a journalistic right of this matter.

Q. That's just your own inference rather than anything told to you or evidence you have to give this Court, correct? A. Yes.

Q. You drew that inference because it was held on his property, is that right? A. Yes.

Q. Are you personally aware that there were are at least three other people living on this property at the relevant time? A. I'm aware that there were people living on the property.

The prosecutor relies on statements made by Mr Anderson to the general manager of the council in a facsimile message dated 13 March 2001 when he refers to "a 'doof' staged at my property" .

The prosecutor also relies on a statement made in a joint letter to the editor by a Mr Schmid and Mr Oakley published in the Byron Shire Echo newspaper on 18 January 2000 as follows:- Fast Buck$ offered us his place and he could have demanded a large upfront fee or a huge chunk of the door. We would have readily accepted. Instead he said, 'This is not about money' and explained how annoyed he was at Council's failure to solve this ongoing problem and that he would agree to host it just to give them the shits, especially as the rock gig at the rugby grounds was going ahead.

He said he hoped residents would be understanding considering this to be a millennial event in the season of goodwill, but as we started work setting up he became increasingly agitated and disappeared for a few days. He didn't attend the party. Too much stress made it impossible for him to enjoy it.

In the end Buck$ sacrificed his own New Years Eve so that this doof of the millennium could go ahead.

It is important, however, to put the letter in context by referring to the second and third paragraphs of the letter, which appear above the passages relied upon by the prosecutor as follows:- We originally intended staging the event at a site at Myocum Road which has better access, ten acres of off-road parking and other advantages.

When the landowner got cold feet after being intimidated by Council staff and Council's solicitor we didn't ask Fast Buck$ to use his property because we knew he would personally cop flak and stress and we knew this site to be unsuitable for obvious reasons. We were looking outside the Shire but without luck.

Mr Urs Schmid confirmed writing the letter in his oral evidence. When asked in cross-examination about the letter the following evidence was given:

Q And what you said there was true, wasn't it? A. wouldn't put it that way, you know, I use our shire newspaper for lots of political moves and I would consider that as a political rather that a fact statement.

Q You did not lie about Mr Bucks, did you? A. What do you mean?

Q. You didn't lie about the statements that you put in there about Mr Bucks, did you? A. Oh, we basically wrote this letter because we felt like, after having a party there and using his land and all that, it's not fair that people start to kind of attack him for it because, like I said before, he really had nothing to do with the party at all, basically what I know from him, he hates even the music, you know, he wants classical music, and he's never been on a, or I've never seen him on a DOOF myself, you know, so--

In re-examination Mr Schmid was given the opportunity to further explain the answers given in cross-examination as follows:- Q. Sorry, Mr Schmid, I just want to ask you a question in relation to that now. You said to the last questioner that you were making a political statement there and that's why you wrote that. Isn't that right? A. Yeah, that's probably correct way.

Q. Could you please just give us a bit more detail on that? What do you mean, you were making a political statement, and how does that political statement bear on whether what you said was the truth or not in that letter? A. I found after Milleni-Yum, this is not just me, because I just be the spokesperson here of the whole people, and everybody felt the same way, we had been betrayed from our council and as we communicated to council so early in the year and we told them exactly what our intentions were, what we really would like to do, and we offered to work together with the safety committee and with, with council on all, on all aspect of the Millen-Yum celebrations and soon it happened, after the Milleni-yum was over, everybody was kind of just jumping on Mr Anderson and I didn't thought that was a fair move, because he didn't know what was going on, and he didn't get any benefit or, or, he didn't really have anything to do with what happened on his property, and so I thought it was not really fair that everybody just jumps, jump on him and accuses him of all this certain different crimes he didn't have anything to do with.

Q. Well did he host the party? A. Excuse me?

Q. Did he host this party? A. I believe that he didn't even know that's it's happening at his property. That's what I, I believe.

Although there is oral evidence in regard to alleged further admissions made in a letter to the editor on 25 January 2000 by Mr Schmid and the press releases on 30 December 1999 and 4 January 2000 by Mr Anderson, upon which Mr MacDonald relied, the original documents have not been produced. In the absence of the original press releases and letters to the editor the evidence does not support the acceptance of the newspaper materials as an admission on the part of the company even if it could be determined that Mr Anderson was acting in his capacity as its representative.

The circumstantial evidence that the prosecutor relies upon includes the ongoing involvement of Mr Anderson in the arrangement, negotiation with the council and eventual cancellation in respect of a proposed Millennium doof party at Myocum.

Further, the prosecutor submits, since the venue for the party was common knowledge and with the obvious activities for preparation extending over at least three days and involving hundreds of people, Mr Anderson must have known the event would be held on the subject land. Mr Preston says it is inconceivable that Mr Anderson did not know the party was to be held on the defendant's property. Although he was not seen at the property until about 1:15pm on New Years Day the inference is that he deliberately stayed away and chose to turn a blind eye. Accordingly, Mr Preston says it strains credulity to believe that he did not know.

Relying on s 97 of the Evidence Act 1995 and what was accepted by the Court in Environmental Protection Authority v ADI Limited (Talbot J, NSWLEC, 22 October 1998, unreported) and Environment Protection Authority v ADI Ltd [1999] NSWLEC 14, unreported, the prosecutor points to a doof party scheduled for 9 October 1999 to be held on the subject land and Mr Anderson's apparent involvement therein. In this respect the council relies on an enquiry conducted by a private investigator on its behalf and, in particular, a conversation between the investigator, Peter Ronald Diskin, and Mr Anderson at the property when Mr Anderson is alleged to have made compromising statements about his involvement in the event proposed, for earlier in the year but eventually not held, at Coorabell. Although the affidavit of Mr Diskin was never formally read its contents were subsequently revealed and examined during cross examination. His surveillance notes and photographs became an exhibit.

Furthermore, a neighbour, Russell Courtney Miller, gave evidence that he recalled "several doof parties at John Anderson aka Fast Buck$ residence at 9 Newes Road Coorabell" . Finally, the prosecutor relies upon a statement in a letter to the Echo newspaper purporting to be from Fast Buck$ on 18 January 2000 when the following statement is made:- Yep, there'll come the day when the Coorabell nimbies will be commenting 'Remember the good old days when Buck$ used to put on a doof once or twice a year? It was so peaceful'.

The evidence, such as it is, was admitted without objection.

Did the defendant cause the development to be carried out

The prosecutor also relies on the evidence in support of the alleged active participation by the company to further assert that the defendant can be said to have carried out development on its land by causing development to be carried out on the land (see Rao v Canterbury City Council (2000) 112 LGERA 360). This is said to be, that by making available the land for the dance party the defendant created a situation in which the person who personally organised the event could carry out the development ( Empress Car Co (Abertillery) Ltd v National Rivers Authority [1998] 1 All ER 481 at 489 per Lord Hoffmann).

The same evidence is again relied upon in support of the argument by the prosecutor that "there may be a use of premises for a particular purpose, even though what is done is merely to permit others physically to employ or avail themselves of the property" ( Macquarie University v Ryde Municipal Council [1977] 1 NSWLR 304 at 315 per Mahoney JA. See also at 313 per Mahoney JA and 311 - 312 per Glass JA; Ryde Municipal Council v Macquarie University (1978) 139 CLR 633 at 638 per Gibbs ACJ; Holroyd City Council v Murdoch (1994) 82 LGERA 197 at 201 - 202; The Corporation of the City of Adelaide v The Australasian Performing Right Association Limited (1928) 40 CLR 481 at 488 per Knox CJ, at 489, 490, 491, 493, 494 - 495, 495 per Isaacs J and at 505 per Gavan Duffy and Starke JJ; R v Randall Barrie Von Snarski [2001] QCA 71, unreported per Thomas JA, Wilson and Douglas JJ, at par 24).

The prosecutor argues that the defendant could have prevented the organisers of the doof party from entering upon the land to carry out development on the land and could have prevented the continuation of the carrying out of the event once it had commenced. The argument is essentially a legal one.

This claim does not demand the same extent of overt participation by the defendant as that required to prove actual involvement by the company.

The prosecutor attempts to make the point that, based on common law principles, even if the defendant seeks to show that its licensees or lodgers were somehow involved in the development the fact that they were allowed on the land at all by Mr Anderson, as the company's representative, means that the defendant is responsible. Mr Preston says that the defendant had "the knowledge or the means of knowledge" of the development but was "willing to turn a blind eye" ( Adelaide Corporation at 491; Murdoch at 201).

Although moving away from the necessity to prove authorisation of the act in question the authorities relied upon by the prosecutor still maintain the element of "knowing" or reasonable foreseeability on the part of the defendant in the sense that the defendant ought to have known of the matters complained of (see Regina v Shorrock [1994] QB 279 and Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1).

It is submitted that proof of direct permission from the owner is not necessary and that it will suffice to show acquiesce by a disinclination to interfere to prevent the occurrences. Moreover, even if the defendant knew nothing about the event until Mr Anderson visited the subject land at about 1:15pm on 1 January 2000 no steps were taken on its part to stop the unlawful activity.

Relying still further on the evidence already referred to in respect of primary liability the prosecutor also alleges that the defendant is vicariously liable for the acts of other persons who organised and carried out the doof party because it had knowledge (presumably through Mr Anderson) "of the organisers' attempts to obtain land upon which to carry out the development, the defendant authorised or permitted the organisers to enter on the defendant's land and to carry out on the defendant's land the development, the defendant observed or otherwise had knowledge of the preparations for the dance party on the defendant's land, and the defendant failed to take reasonable and effective steps to prevent the carrying out of the development" .

The third route by which the defendant can be liable, according to the prosecutor, is as a secondary participant (see s 55 of the Land and Environment Court Act 1979 ("the Court Act"); Giorgianni v The Queen (1985) 156 CLR 473 at 478, 490, 492, 500; Burrell v Jacenko (1998) 99 LGERA 173 at 176; Rao at 366).

It is claimed that the defendant aided and abetted the commission of the offence by reason of the following matters:- (1) The defendant made available the land on which the crime of carrying out development without consent was to take place;

(2) By making available the land, the defendant aided and abetted the organisers by helping to set the stage for the commission of the crime of carrying out development on the land without consent; and (3) The defendant had knowledge (not necessarily actual knowledge) of the essential factual matters which went to make up the offence ( Giorgianni at 487 - 488, 494. - 495, 500; Von Lieven v Stewart (1990) 21 NSWLR 52 at 55, 56; Cooper v Coffs Harbour City Council (1997) 97 LGERA 125 at 134 at footnote 39).

The Court is not satisfied beyond reasonable doubt that the company was a primary or principle participant in the sense of directly hosting or organising the party.

The broad proposition that an owner cannot be responsible for the actions of a tenant or occupier of its land is generally regarded as untenable. However, according to the Full Court of the Supreme Court of South Australia, it is well established that before a person is found to permit or suffer an act to be done it is necessary for them to have both knowledge of the act, including what ought to have been known, and the capacity to prevent it ( Wright and Romeyko v Corporation of City of West Torrens (1996) 91 LGERA 197 at 208). In The Council of the City of South Sydney v Kurtonal and Ors (Bignold J, NSWLEC, 12 Feb 1997, unreported) Bignold J preferred to base any finding on the criminal doctrine of secondary participation or its statutory equivalent in s 55 of the Court Act.

The Court has not been assisted greatly by Mr Preston's reference to a legion of cases involving the tort of nuisance. Liability for a nuisance is not a strict liability. A person is not liable in nuisance unless they continue or adopt the nuisance or fail to remedy it when they become aware of it. Shorrock is cited as authority for the proposition that in order for a defendant to be criminally answerable for a public nuisance actual knowledge of the nuisance need not be established and that a defendant land owner is responsible for a nuisance which he knew or ought to have known (in the sense explained by Lord Wright in House of Lords in Sedleigh-Denfield v O'Callaghan (1940) AC 1880) ( Shorrock at 289).

In Giorgianni the High Court decided that an accessory had to have actual knowledge (or its legal equivalent) of the circumstances attending the principal's crime which showed its criminal nature. At p 487 Gibbs CJ referred to "connivance, or wilful blindness" as virtually amounting to knowledge. Mason J attributed knowledge if the defendant "has deliberately shut his eyes to a relevant fact or has deliberately abstained from obtaining from knowledge by making an inquiry for fear that he may learn the truth" (p 495). At p 505 and p 508 in the joint judgment of Wilson, Deane and Dawson JJ it is made clear that aiding, abetting, counselling or procuring the commission of an offence requires the intentional assistance or encouragement of the doing of those things which go to make up the offence. The necessary intent is absent if the person alleged to be a secondary participant lacks knowledge that the principal offender is doing something or is about the do something which amounts to an offence and that, in the circumstances of that case, reckless behaviour on the part of the defendant could not suffice to establish the intent necessary to constitute him the procurer of the offence of culpable driving (see also subsequent decisions for example Pereira v Director of Public Prosecutions (1988) 82 ALR 217 and Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1988) 103 LGERA 355). 63. The subsequent decisions discourage the usage of the term "wilful blindness" and appear to favour a notion of constructive knowledge in the sense that the knowledge of the probable existence of something as a matter of evidence can for practical purposes be equivalent to actual knowledge ( Bahri Kural v The Queen (1987) 162 CLR 502 and Saad (1987) 29 A Crim R 20).

As part of the rebuttal to the circumstantial case presented by the prosecutor Mr Gelbert makes the following observations:- (1) There is no evidence linking Rising Damp financially with the event.

(2) There is no evidence of any link that exists between the apparent organisers of the Millenium event and the company.

(3) Mr Anderson has not been linked as a representative of the Millenium organisers at any of the meetings with council

(4) The prosecution has not established that Mr Anderson was living at the property at the relevant time.

(5) The prosecutor has not produced evidence from one person who was either directly or indirectly involved in the organisation of the event. Yet there was evidence from the defendant's witness, Mr Schmid, that several hundred people were involved. The oral evidence of Mr Schmid is that Mr Anderson, much less the company, had nothing to do with the organisation.

(6) Any suggestion from the evidence of Mr Diskin, a private investigator engaged by the council, that Mr Anderson had a tendency to be involved in the organisation of doof parties is inconsistent with Mr Anderson's statement to him that he was not in favour of such events. In oral evidence Mr Diskin says that he has no evidence to show that Mr Anderson benefited from any dance party or that he managed a dance party other than from a conversation with Mr Anderson on the property in October 1999 during, what Mr Diskin described as, a "covert operation" . Further, the exact nature of the brief to Mr Diskin is obscure but clearly relates to the activities of Mr Anderson personally rather than the company. Mr Diskin made no written note about the conversation with Mr Anderson until 13 months after it took place. His evidence can be discounted. In any event the type of party discussed with Mr Diskin involved a totally different modus operandi. (7) The evidence of Mr Schmid is that it was not his, that is, Mr Anderson's, type of music. (8) Apart from the political context of the letters published in the Echo newspaper the evidence of Mr MacDonald, who now has no independent recollection of the source material for his article, is unreliable. (9) It is important to distinguish the actions of the individual, Fast Buck$, in his diverse public roles of councillor, commentator and lobbyist, Mr Anderson, the individual and company director and the separate entity of The Rising Damp Corporation Pty Limited. (10) There is no direct evidence of Mr Anderson having any knowledge that the organisers were proposing to hold the doof Millenium celebration at Coorabell. The only available evidence is the unsatisfactory and unacceptable evidence of Mr Diskin and Mr MacDonald. If Mr Anderson, the attributed alter ego of the company, did not know that the event was planned for the subject land then the Court cannot be satisfied beyond reasonable doubt that the company acquiesced in the carrying out of the development. (11) The only direct evidence of the principal persons responsible for the organisation of the event by Happy People Productions identifies four people, apart from Mr Schmid, none of whom is Mr Anderson. (12) It is not open for the Court to attribute the events leading up to the New Years Eve party at Coorabell to Mr Anderson solely on the basis that he supported the organisers at a time when they were attempting to obtain permission to hold a Millenium party at Myocum.

The final written submission prepared by Mr Anderson reiterates the above arguments and in addition refers to the following:- (a) While The Rising Damp Corporation Pty Limited cannot act otherwise than through Mr Anderson, nevertheless, he can act in his own right apart from the company. The prosecution has not attempted to demonstrate any "specific directional behaviour" by Mr Anderson.

(b) The suggestion of a "chain of intent" between the actions of Mr Anderson in relation to proposed events at Myocum and the company's alleged involvement in the proposed event and the subject party requires an assumption that Mr Anderson was not acting in his personal capacity as a lobbyist, but on behalf of the company, in respect of the Myocum event. (c) There is no evidence that the company had the power to own the land, let alone engage in political, charitable or celebratory events. (d) The actions attributed to Mr Anderson suggest that he was acting on his own behalf "in disregard of the company" . (e) Virtually all of the evidence put forward by the prosecutor is tainted by the actions of the council which, he says, are based upon conjecture and suspicion giving rise to a biased approach which was directed at investigating "the activities of Mr Fast Buck$" . (f) The short duration of the event and the actions leading up to it reduce the prospect of a heightened expectation of the drawing of an inference that Mr Anderson must have known what was going on.

Mr Anderson has been shown to be a commentator with a focused interest, even a direct participant, in an ongoing controversy over the holding of dance parties in the Byron Bay area and the confrontation between organisers and the council in that respect. The penultimate question to be determined is whether the evidence shows that the company knew or ought to have known or it can be inferred that it did know, that the doof event at the subject land was to be held on its land. Ultimately the Court must be satisfied that if the company had the relevant degree of knowledge whether it was in a position to control or prevent the happening of the event.

In the result the Court must be satisfied, as a matter of evidence, that the defendant had knowledge of at least the probable existence of the ingredients of the offence in order to be liable pursuant to s 55 of the Court Act as an accessory.

In Murdoch at 203 Stein J expressed the opinion that an owner of land may be liable under planning law to be restrained from leaving his land in such a condition so as to be an open invitation to illegal dumpers. Furthermore, he said an owner may be required to remove fill unlawfully dumped on his land without his authority, so long as he knows or is made aware of the situation and takes no steps to prevent its recurrence. This opinion was expressly approved by the Court of Appeal in an extempore judgment, namely Murdoch v Holroyd City Council (Priestley JA, Sheller JA, Cohen AJA, NSWCA, 20 November 1996, unreported).

The High Court in Adelaide Corporation determined that it is a question of fact in each case what is the true inference to be drawn from the conduct of a person who is said to have authorised a particular act. In the joint judgment of Gavan Duffy and Starke JJ at p 504 it is made clear that mere inactivity or failure to take some steps to prevent the act does not necessarily establish permission. "Inactivity or "indifference exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred. It is a question of fact in each case what is the true inference to be drawn from the conduct of the person who is said to have authorized the performance or permitted the use of a place of entertainment for the performance complained of" (Performing Right Society v Ciryl Theatrical Syncicate (1924) 1 KB at 9 per Bankes J)".

In terms of direct corporate liability a question such as the one that arose in Universal Telecasters (Qld) Ltd v Guthrie [1977] 18 ALR 531 does not arise in this case as there can be no doubt that Mr Anderson occupied all of the relevant positions in the company which entitled the Court to regard him as the ego of the company. Although Mr Anderson is not on trial it is nonetheless necessary to determine in the first place whether his actions give rise to the offence.

71 In Tesco Supermarkets Ltd v Nattrass (1972) AC 153 at 170 Lord Reid explains as follows:-

A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable.

72 Lord Reid at p 171 and p 172 expresses doubt that it is appropriate to use the phrase alter ego as the person is not acting as a separate individual to the company. The relationship between Mr Anderson and the company does not, therefore, give rise to vicarious liability. It is only in the context of the actions of the actual organisers of the party that vicarious liability arises in the present case. The evidence does not support a finding of a sufficient relationship between the company and the organisers to justify a finding of vicarious liability.

73 The case against the company, through Mr Anderson, is almost entirely circumstantial. The Court is asked to infer that Mr Anderson, on behalf of the company, acquiesced in the wrongful use of the land. To establish that fact it must be shown beyond reasonable doubt that he had the necessary knowledge, in the relevant sense, that the event would be or was taking place.

That knowledge is an "indispensable step upon the way" to an inference of guilt which must be proved beyond reasonable doubt if the ultimate inference of acquiescence is to be the only reasonable hypothesis ( Shepherd v The Queen (1990) 170 CLR 573 at 581). The fact of knowledge can be derived from a single piece of evidence or a conclusion of fact drawn from a body of evidence. It is not necessary for every fact in the body of evidence to be proved beyond reasonable doubt provided that when taken together the facts lead to the conclusion based upon the criminal standard of proof.

In Pereira the High Court, after referring to Giorgianni, said "[i] t is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge" and then went on to say at p 220 as follows:- Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter.

Applying the above principles to the present case, there is no evidence to support any inference that Mr Anderson was aware of suspicious circumstances. The Court is not able to find that the knowledge of Mr Anderson is the only rational inference available. There is no evidence that Mr Anderson took any overt steps to avoid his exposure to events. There are no facts leading up to his appearance on the property at about 1:15pm on 1 January 2000 that would allow the Court to find that there was actual knowledge the event was taking place. By then, the event was well advanced. Beyond the evidence of the presence of Mr Anderson on the property at that time there is no evidence of what actions he took relative to the continuance or the discontinuance of the function.

Without rejecting one circumstance upon which the prosecutor relies (although some parts of the evidence are so unreliable or add such little weight to the whole, for the contribution to be minimal) the Court cannot beyond reasonable doubt draw an inference of guilt through the attributable knowledge or actions of Mr Anderson from the evidence considered as a whole ( Chamberlain v The Queen (1983 - 1984) 153 CLR 521 at 535).

Accordingly, the prosecutor has not proved beyond reasonable doubt that the defendant company carried out the development on the subject land either as a primary or secondary participant.

It follows, therefore, that the charge will be dismissed.

In the absence of argument, this is an appropriate case where the Court should exercise its discretion in relation to costs by ordering the prosecutor to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(1988) 103 LGERA 355

(2000) 112 LGERA 360

At a glance

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Judgment (106 paragraphs)

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Cases Cited (17)

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