Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited

Hawkesbury City Council v Johnson; Hawkesbury City Council v Johnson Property Group Pty Limited - [2008] NSWLEC 138 - NSWLEC 2008 case summary — Zoe

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Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Bergin v Stack (1953) 88 CLR 248 C B Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270 Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531 Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 Director-General of the Department of Land and Water Conservation v Greentree & Anor [2002] NSWLEC 102 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593 Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43 He Kaw Teh v The Queen (1985) 157 CLR 523 CASES CITED: Jiminez v The Queen (1992) 173 CLR 572 Kondis v State Transport Authority (1984) 154 CLR 672 Lizzio v The Council of the Municipality of Ryde (1983) 155 CLR 211 Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] QdR 580 Ostrowski v Palmer (2004) 218 CLR 493 Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186 Power v Penthill House Pty Ltd (1993) 80 LGERA 247 Proudman v Dayman (1941) 67 CLR 536 State of New South Wales v Lepore and Anor; Samin v State of Queensland and Ors; Rich v State of Queensland and Ors (2003) 212 CLR 511 State Rail Authority v Hunter Water Board (1992) 28 NSWLR 721 Stoneman v Lyons (1975) 133 CLR 550 per Mason J at 573 Tesco Supermarkets Ltd V Nattrass [1972] AC 153 Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 Von Lieven v Stewart; Kemish v Godfrey (1990) 21 NSWLR 52

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Summary of Prosecutor's case 7 The offences consisted of carrying out development which required development consent under an environmental planning instrument which applied to the land where such a development consent was not obtained and in force in respect to the development, contrary to s 76A(1)(a) of the EP&A Act. The development comprised the felling and/or clearing of trees. The trees were "native vegetation" within the meaning of that term in the LEP. The term is not defined in the LEP. It bears its ordinary and natural meaning of vegetation which is indigenous or native to or belonging naturally to Australia. 8 The first basis of liability is that, as the land was zoned 7(d1) Environmental Protection (Scenic), a combination of cl 7 and cl 9(1)(d) and the land use matrix for cl 9 of the LEP had the effect that the development of clearing native vegetation could be carried out on land in zone 7(d1) only with development consent of the Council for which a complying development certificate could not be issued. No such consent was granted or in force for the activity the subject of the offence. 9 The second, alternative, basis for liability is that cl 36 of the LEP provided that a person must not fell trees on land in zone 7(d1) without the consent of the Council and that no consent was granted or in force. 10 The offences charged are offences of strict liability (Power v Penthill House Pty Ltd (1993) 80 LGERA 247 (Stein J) at 252 - 253). Accordingly, if raised by either Defendant, a defence of honest and reasonable mistake of fact is available but no proof of intention to commit the offence is required. The actions giving rise to the offence were carried out by Mr Sorenson, an employee of WJ Friend Pty Ltd. That company was engaged by the Defendants to do the work giving rise to the offence. 11 The Prosecutor submitted that JPG is liable for Mr Johnson's statements and actions because Mr Johnson was the embodiment of the company, he was its directing mind and will (Tesco Supermarkets Ltd v Nattrass [1972] AC 153 per Lord Reid at 170; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 per Brennan J at 514; Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 per Gleeson CJ at 717). The Prosecutor contends that Mr Johnson's statements and actions in this matter were the statements and actions also of JPG. Likewise, on the evidence, the actions of the corporate defendant in this case were the actions of Mr Johnson. 12 In relation to the liability of the Defendants for the conduct of WJ Friend Pty Ltd, via its employee Mr Sorenson, the general rule is that a head contractor is not usually vicariously liable to a third party for acts or omissions of an independent contractor or subcontractor (Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 per Dixon J at 48). However, an exception to this principle is where the principal has directly authorised the doing of the relevant act, the doing of some act which comprises that act, or the doing of some act which leads by all physical necessity to the offence (Stoneman v Lyons (1975) 133 CLR 550 per Mason J at 573, Stephen J at 562; Kondis v State Transport Authority (1984) 154 CLR 672 per Brennan J at 692). 13 The Prosecutor submitted that the Defendants directly authorised, indeed instructed, that the tree clearing be done. Alternatively, the Prosecutor says the felling of the trees was a necessary result of the conduct authorised by the Defendants. Evidence 14 Bona Vista Properties Pty Limited is the registered proprietor of both the land and the adjoining Lot 14 in DP 865977. Australian Security and Investment Commission (ASIC) property searches tendered as exhibits C, D and E show that Mr Johnson is the sole director as well as secretary of JPG, Bona Vista Properties Pty Ltd and Johnson Property Investments Pty Ltd. Mr Johnson is the sole shareholder of Johnson Property Investments Pty Ltd. This company is sole shareholder of both Bona Vista Properties Pty Limited and JPG.

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23 In cross-examination Mr Ryan was asked, inter alia, if the conversation with Mr Johnson on 12 April 2006 was out of the ordinary and he replied that it was not. He had not taken notes of the conversation. It was significant in that Mr Johnson had asked him difficult questions about trees in pots and trees in the ground and whether that activity needed development consent but otherwise the conversation was normal. Mr Ryan agreed that he does not refer to that part of the conversation in his affidavit. Nor does he refer in his affidavit to telling Mr Johnson he should write to Council with more details. Mr Ryan did not agree that his recollection of the conversation was unclear and he always remembered the conversation about trees in pots. 24 He also told Mr Johnson that development consent was needed at the meeting on the land on 18 April 2006. He had also received the letter from Mr Johnson attaching a letter from a solicitor containing advice. Mr Ryan agreed that what Mr Johnson had said to him about his belief were precisely the things that the solicitor had said to him. 25 On April 18 2006 when Mr Ryan returned to work, numerous staff at the Council spoke to him because work had commenced on the land. He rang Mr Hedge at JPG and told him that he did not agree with his legal opinion and that there should be no further work conducted on the land. In cross-examination Mr Ryan agreed that he does not refer in his affidavit to his statement that work should stop on the land. He did not know why that is not in the affidavit. 26 Mr Ryan was asked in cross-examination if he was familiar with the proposed development that had been approved for the land since these events and he replied that he was. He agreed that he had many discussions with Mr Johnson about the form the development application should take. He was aware that the development application that had been submitted was for a staged development and that the areas that covered the proposed turf farm and plant nursery were the last two stages of the proposed development. He agreed that Mr Johnson had told him in the phone call before Easter (April 12 2006) that the turf farm was for the proposed subdivision on the land. 27 Mr Ryan agreed in cross-examination that the area located in the southeast of the land was nominated as a conservation zone by JPG. It was zoned environment protection 7(d1) under the LEP at that time. He agreed that within the area of the proposed turf farm and tree nursery there were trees shown as growing. In his letter of 19 April 2006 (referred to at par 47(ii) below), Mr Ryan used the word "ancillary" as he was paraphrasing the opinion of Mr Wilcher, solicitor. He agreed that the reference in the letter to "future likely" residential land was there because he considered it was probable that the proposed subdivision would take place. 28 Mr Ryan stated that he had read the letter sent to the Council from Mr Johnson dated 21 April 2006 (reproduced at par 47(iv)) and did not agree with all its contents. He had not replied because it was not his job to do so. He did not agree with statements in the letter that: … it was the intention of the Johnson Property Group to undertake an agricultural activity on site, namely the potting of trees (ie horticulture) with necessary vegetation removal for that purpose. Mr Ryan concurred that it would not require development consent. and he did not recall statements on page 2 that: Despite the above matters Mr Ryan advised that he still considered it arguable that development consent would be required but given the proposed use and the imminent rezoning of the land he did not see any problem with development consent being granted. 29 In relation to the telephone discussion with Mr Wilcher, solicitor, at the land on 18 April 2006, Mr Ryan did not agree that when Mr Wilcher had said that whether development consent was required was a "grey area" he had agreed. His opinion was always that the clearing of trees required development consent. The development application for the turf farm, annexed to his affidavit, states it is for the removal of some native vegetation and minor alteration of the surface of the land which would be required for and is ancillary to the proposed agricultural activity. When the Defendants' counsel asked Mr Ryan if the terms of the development application reflected the discussion he had with Mr Johnson and Mr Wilcher on 18 April 2006, Mr Ryan replied it did not. All that had been said was that a development application was to be submitted. 30 Mr Ryan did not agree that the word "agricultural" was used many times in the conversation on 18 April 2006. He agreed it was used several times as was the word "ancillary". Further, in recollection of the conversation on 12 April 2006 recorded in his affidavit, Mr Ryan agreed that he had replied to Mr Johnson's inquiry that turf farming and the nursery for production of trees would probably be defined as "agriculture".

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31 Mr Ryan had extensive discussions with Mr Johnson about the size of lots on the land as these were an important consideration in the rezoning proposal for the land. Mr Ryan had suggested at one stage that 450m2 blocks would be a suitable size for the subdivision of property to the south of the land as a way of mitigating the impact on treed areas. He agreed that Mr Johnson had been opposed to that approach on the land. 32 In re-examination Mr Ryan was asked about the turf farm plan and the fact it showed trees in the turf area and the tree and plant area. That indicated to him an intention to remove the trees as a turf farm would not have any trees, being "fence to fence" turf. He considered the trees were shown as represented on a survey plan which was generated for JPG. He was also asked if he had made a record of the conversation he had with Mr Johnson on 12 April 2006. He had prepared a memorandum on 19 April 2006 which referred to it (exhibit L). 33 Mr Ryan was asked further questions in relation to the memorandum in exhibit L which he stated he had prepared on 18 April 2006. It was dated 19 April 2006 because it was dated the day the machine generated it (the following day). It refers to events on 12 April 2006, after the 18 April 2006 events because he had been in a rush to get it done and report to Ms Gee who was in charge of taking legal action. He did not know why it was not attached to his affidavit. He had not corrected the incorrect date reference in the opening line of "18 March 2006". It had been locked into the Council's electronic system on 19 April 2006 and could not be altered. 34 The memorandum dated 19 April 2006, exhibit L, stated, inter alia: Mr Johnson subsequently made accusations that I gave consent for the removal of trees, in a phone conversation he had with me on 12 April 2006. Whilst I recall the phone conversation with him, the conversation was around whether or not he would require a consent for turf farming and the establishment of a nursery; both of which could be argued are agriculture and in that zone do not require consent. At no time did I recall him mentioning the removal of any trees or vegetation to establish this matter.

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40 Ms Gee attended the land on 14 October 2006 with Mr Hall and Mr Sproule, viewing it from Johnston Street without actually entering it. 41 By letter dated 17 November 2006 to Mr Greg Monaghan of Monaghan Surveyors Pty Limited, Ms Gee sought a quote to undertake survey works to certify that the existing road centreline pegs in Johnston Street, Pitt Town were representative of those identified on engineering plans L03017-BONA-DA-304 and L03017-BONA-DA-305, as prepared by Brown Consulting for JPG. These plans are exhibited to the affidavit of Mr Westbrook and were used by him in the surveying process described in his affidavit evidence. 42 In cross-examination Ms Gee agreed that her oral evidence of the conversation she had with Mr Johnson on 18 April 2006 at about 9 am was the general gist of that conversation and not the precise words used. There are no file notes of the conversation attached to her affidavit. She considered that her recollection of the actual conversation and the flow of the conversation was very clear. The conversation had taken only about five minutes, if that. She could not say whether Mr Johnson had said to her "I've spoken to Mr Ryan and he told me that I didn't need consent". In her affidavit at par 4 to which she was then referred, she stated that Mr Johnson had said "I have spoken with Mr Malcolm Ryan and he said that I did not need approval." She could not recall any conversation where she had asked Mr Johnson to keep her informed about what was happening on the land. 43 Ms Gee thought the "courtesy" Mr Johnson was extending to her in the call on the morning of 18 April 2006 was providing the Council with information about the activity occurring on the property. What Mr Johnson said to her were words to the effect that Mr Ryan had told him he did not need consent or approval. 44 Ms Gee spoke to Mr Ryan later that day as he was unavailable immediately after her conversation with Mr Johnson. She wanted to talk to him because her understanding of the legislation was different to what Mr Johnson had said. She could not recall, in cross-examination, any reference to "agriculture" or "agricultural activity" or "ancillary" or ancillary agricultural activity. 45 The letter sent by Ms Gee to Mr Johnson dated 19 April 2006 (see par 47(iii) below) was written after discussion with Mr Ryan and after she had viewed photographs of the land. 46 Ms Gee could not recall if she had a conversation with Mr Johnson on 19 April 2006 in which she said words to the effect that she did not agree with the view that Mr Ryan expressed. She did not consider she would have said such words. Series of letters referred to by Mr Ryan and Ms Gee 47 The following letters are attached to the respective affidavits of Mr Ryan and Ms Gee and are set out in date order. (i) A letter dated 13 April 2006 from JPG signed by Mr Johnson to Mr Ryan in relation to "Proposed Agricultural Activities on Bona Vista Lot 132 DP1025876 and Lot 14 DP865977" advises the Council of JPG's intention to undertake agricultural activity on the land, and that it had legal advice that the proposed activity did not require consent under the LEP. The letter states that contractors had been instructed to proceed with the work with an anticipated start date of 18 April 2006. Attached to the letter is a "Proposed Plan and Turf Cultivation Plan" ("the turf farm plan"), which indicates the proposed locations of a turf area and tree and plant area within to for Lots 14 and 132. (This is the same plan referred to later in evidence by Mr Friend as having been received from Mr Johnson). Also attached is a letter from Herbert Geer and Rundle Lawyers dated 11 April 2006 to Mr Hedge of JPG which stated, inter alia, that: there is nothing in the Hawkesbury Local Environmental Plan which requires Council's consent to establish the plant nursery… At best, it could comprise agriculture which is permissible without consent… As the removal of native vegetation is completely ancillary to the nursery works, it will also not require consent. (ii) A letter dated 19 April 2006 to Mr Johnson from Mr Ryan in reply to JPG's letter of 13 April 2006. The letter states that whereas within the 7(d1) zone agricultural activities can be conducted without Council consent, "clearing of native vegetation" is local development and is defined in the LEP and that this information had been conveyed in November 2005 to Mr Johnson. It was Council's opinion that the clearing of native vegetation required the submission of a development application and was not ancillary to agriculture. The turf farm plan that accompanied Mr Johnson's original letter indicated that driveways would be required, the construction of which would effect an alteration to the surface of the land, thereby attracting the requirement of consent under cl 36 of the LEP. (iii) A "show cause" letter dated 19 April 2006 from Ms Gee to Mr Johnson in relation to "Alleged Unauthorised Removal of Trees at Bona Vista Lot 132 DP 1025876, 18 Johnston Street, Pitt Town". The letter noted that Council had not granted approval for the removal of trees and clearing of native vegetation and directed that Mr Johnson, as owner of the property, cease all works on the property and show cause.

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66 In relation to the aerial photograph with hatching overlay (annexure A to his affidavit and identical to exhibit K5, see par 88), the red area is approximately the area where Mr Pleffer saw black wattles pushed over. Some trees were still standing on the northern verge of that area, visible in photographs 13 and 20 (annexure A of Mr Hall's first affidavit). In an area immediately west of the area hatched in red he saw some large eucalypts that had been pushed over lying in at least one pile. Mr Pleffer referred to Mr Hall's affidavit and the plan annexed to it (annexure B), but, in relation to a number of photographs (annexure A), he was not sure whether the direction in which it was indicated that they were taken is correct. 67 In cross-examination, Mr Pleffer stated that he had used the odometer in the car to take approximate measurements along the road north of the land. Neither he nor Mr Hall had made any attempt to count the number of trees on the land, as that task was up to Mr Sproule. It was not part of Mr Pleffer's task to try and work out from where any of the felled trees came. Mr Friend 68 James Friend is a Director and Manager of W J Friend Pty Ltd. He affirmed an affidavit on 26 March 2007 which was read in part and also gave oral evidence. Mr Friend has conducted business with Mr Johnson and JPG for about ten years, ranging from building a subdivision to tree clearing. Before 18 April 2006, W J Friend Pty Ltd was contracted by JPG to do work consisting of clearing, underscrubbing and removal of trees at the land. A week or two "before the work was done", Mr Friend was called by Mr Johnson to ask him to do the work which involved clearing for a turf farm. Mr Friend was familiar with the land, having been contracted to work there before by JPG. 69 Mr Friend notes in his affidavit that although he could not remember specifically, he believed that in relation to the tree clearing on 18 April 2006 he had gone to the land and had met Mr Johnson there. Mr Friend possessed documents he believed were given to him onsite, including a letter from Herbert, Geer and Rundle Lawyers dated 11 April 2006 (annexure B), a letter from Mr Johnson sent to the Council dated 13 April 2006 (annexure C), a copy of Proposed Turf and Plant Cultivation Plan (annexure D) and a smaller copy of the same plan (annexure E).

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Liability of Defendants 99 The Defendants are vicariously liable for the conduct of WJ Friend Pty Ltd under the exception to the principle that an employer of an independent contractor is not usually vicariously liable to a third party for acts or omissions of an independent contractor or sub-contractor, in other words, the actions giving rise to the offence were directly authorised. The Prosecutor argued this was supported by: (i) direct evidence (ii) inferential evidence (iii) evidence of admission of guilt (iv) evidence of motive Any of these categories of evidence could establish guilt. Evidence of consciousness of guilt was also referred to but this is dealt with in the Prosector's submissions in relation to mistake of fact. 100 The direct evidence is found in Mr Friend's evidence that he was contracted to clear trees in the turf farm area by Mr Johnson. The cleared trees are in that area and were cleared by Mr Sorenson in the four hours he worked on 18 April 2006. 101 The marking of the large plan by Mr Friend of an area of protected trees suggests that Mr Johnson gave instructions for the trees in the south-eastern corner to be preserved but gave no instructions for the trees in the rest of the area to be preserved. Mr Sorenson considered the job would take two or three days which suggests its magnitude. 102 The fact that the invoices from WJ Friend Pty Ltd to JPG were paid gives rise to an inference that the Defendants were satisfied the work contracted for had been done. Only the work actually done was paid for as that was billed on an hourly rate. 103 There is no evidence that either Defendant told WJ Friend Pty Ltd that unauthorised work had been done, despite numerous opportunities to do so following Mr Johnson's arrival on site on 18 April 2006 or in the letter to the Council dated 21 April 2006. The strong inference arises that the contractor had done what was instructed. 104 Evidence of admission of guilt is contained in the letter of 21 April 2006 in which the Defendants claimed Mr Johnson told Mr Ryan on 12 April that they intended to engage in "necessary vegetation removal". The terms of the letter otherwise are consistent with the Defendants taking full responsibility for the tree removal undertaken by Mr Sorenson on 18 April 2006. 105 The Prosecutor also made lengthy submissions concerning evidence of motive for the Defendants to arrange for the carrying out of the clearing of trees as this was said to enhance the development potential of the land for a proposed residential subdivision the subject of a development application lodged in July 2006, and a later application for rezoning made in August 2006. As the Prosecutor submitted, correctly, that evidence is not necessary to establish a finding of guilt in this matter.

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Mistake of law 109 Any mistake of the effect of a legal instrument such as the Hawkesbury LEP or the proper characterisation of activities by virtue of the LEP was a mistake of law not fact. A mistaken belief that the Defendants were authorised to clear the land or were not breaching the Act is not a defence, Ostrowski v Palmer (2004) 218 CLR 493 per Gleeson CJ & Kirby J at 502, 503, 504, McHugh J at 510-18 inter alia. 110 There is no element of the offence with which the Defendants are charged that they believed they were authorised to do what they did. A mistaken belief that: (a) the felling of the trees complied with the requirements of the law, or (b) the felling of the trees was not a breach of the legislation, or (c) the legislation, including the LEP, did not apply to the felling of these trees, or (d) the felling of the trees was not a breach of the legislation because it was authorised by the Act or the LEP, or (e) the felling of the trees was authorised because it was ancillary to agriculture, or (f) the felling of the trees was not prohibited by the planning instrument, is a mistaken belief of law. (par 49 Prosecutor's closing submissions) 111 Reliance on legal advice does not convert a belief in a matter of law into a belief in a matter of fact (Ostrowski per McHugh J at 516-517, Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] Qd R 580 at 592) Defendants' submissions Issue 1 - Mr Johnson not synonymous with company 112 The Defendants submitted Mr Johnson was not synonymous with the company. There is insufficient evidence that attributes conduct of one individual to a corporate entity. It is not sufficient to prove that because Mr Johnson is the managing director and has the same name as the company that anything he does is attributable to the company and vice versa. The Defendants admitted that the Prosecutor does not have to prove that every act done in relation to the Bona Vista property by the company is through Mr Johnson. 113 There is evidence that other people, such as Mr Hedge, did things on behalf of the company. For example, Mr Ryan spoke first to Mr Hedge on 18 April 2006 and the solicitor's letter attached to the letter from Mr Johnson dated 11 April 2006 was addressed to Mr Hedge. 114 The events are over a very short period of time and there is not enough activity involved to allow the Prosecutor to prove that Mr Johnson was the controlling mind of the company in relation to the Bona Vista development and the turf farm proposal. The events commence with a phone call from Mr Johnson on 12 April 2006, a letter from the company signed by Mr Johnson dated 13 April 2006 and the activity on the land on 18 April 2006.

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117 The key transaction is one conversation between Mr Friend and Mr Johnson and that cannot be attributed to both Defendants. Prosecution on that basis is the first time this situation has arisen in this Court. Other cases have involved a corporation and an individual being charged in relation to the same events but not on the basis alleged here. It is not clear from the transaction whether Mr Johnson was acting in a personal capacity or on behalf of the company. The evidence at its highest establishes that he was acting on behalf of JPG. That was Mr Friend's understanding of the transaction. The contract, which the Prosecutor relies on as the basis for vicarious liability, with Mr Friend's company as an independent contractor can only be a contract with one person. This charge can only be sustained for one prosecution. To the extent there was a contractual arrangement with Mr Friend, that arrangement was between him and the company. The basis for the liability of Mr Johnson personally through the conduct of Mr Friend can only be accessorial, in other words that Mr Johnson personally aided and abetted Mr Friend to commit the offence. That basis of liability has been abandoned. Issue 3 - nature of agreement between Mr Friend and JPG 118 As identified in the Prosecutor's closing submissions the nature of the instructions given by Mr Johnson to Mr Friend and by him to Mr Sorenson are important in determining whether what Mr Sorenson did at the Bona Vista site was in accordance with Mr Johnson's instructions. Firstly, it is not entirely clear what Mr Sorenson did apart from the fact that the bulldozer he was driving felled a number of gum trees and wattle trees. There is no clarity in the evidence about where the gum trees were felled. The aerial photograph from 2003 shows the condition of the property at that time. There is no conclusive evidence of exactly where the trees felled were located before they were felled. A more recent photograph would have established this but one is not in evidence. It is not clear on the evidence that the gum trees felled were in the hatched area for the proposed turf farm and plant nursery depicted in the plan provided by Mr Friend. 119 Mr Friend gave Mr Sorenson his instructions (see transcript at p 209-210, 212). The instructions are too vague to support a charge based on direct authorisation of the conduct the subject of the charge. The instructions by Mr Johnson to Mr Friend are very imprecise based on Mr Friend's evidence. Mr Friend cannot recall the detail now and the usual arrangement was that specific instructions would be given on the land on the day in question. 120 The instructions given by Mr Friend to Mr Sorenson are even more imprecise when he conveyed what he believed them to be to Mr Sorenson. (see p 219 line 35). The words "clearing of trees" was not used by Mr Friend in his evidence. Vegetation does not necessarily mean trees (see also p 208). There is no specific reference by him to cutting or starting to push down trees. When Mr Sorenson refers to "start pushing down trees" in his evidence that is new as those words were not used by Mr Friend. 121 Mr Sorenson stated in cross-examination that Mr Friend said if there were to be specific instructions they would be given on the land when Mr Sorenson was there. The evidence does not make clear whether the large gum trees came from an area inside or outside the proposed turf farm and plant nursery area. There is no evidence that links the chainages identified in Mr Hall's evidence with the turf farm plan. Nor is there specific evidence on where the gum trees were knocked over in relation to the turf farm area. It is not exactly clear where the first line of trees referred to by Mr Sorenson was. Mr Sorenson had a smaller map than the large one in exhibit D or C which is clearer. 122 Vegetation as a general term does not refer to trees. When Mr Friend referred to vegetation when talking to Mr Sorenson he did not necessarily mean trees. Any ambiguity should be resolved in favour of the Defendants. 123 The Defendants' actions were consistent with believing that what was done was lawful. Mr Sorenson stated that as Mr Johnson said words to the effect "I am satisfied with the work you are doing" and that no complaint was made, that was some kind of tacit approval. The bill from WJ Friend Pty Ltd was paid. 124 At p 227 of the transcript Mr Sorenson says that Mr Johnson drove up to him immediately on arrival without making an inspection of the property and says words to the effect "there's a bit of a problem etc…". Mr Johnson's attitude on arrival was consistent with the belief that he claims to have had, that nothing was wrong. 125 The evidence of Mr Friend and Mr Sorenson is imprecise and cannot establish to the criminal standard that there was specific authority given by Mr Johnson or JPG to cut down the trees that were cut down.

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Issue 4 - whether clearing of vegetation/trees ancillary to agriculture, honest/reasonable mistake of fact 126 The Prosecutor submitted the clearing of trees was not ancillary to use for the purpose of agriculture as it was an independent use of land. The question whether the removal of vegetation was ancillary to agriculture was a question of fact. Agriculture is a use of land which does not require development consent under the LEP. Sections 7 and 36 of the LEP are directed to where the primary or sole purpose of the activity is the clearing of trees. The issue is one of fact. 127 The fundamental question requiring determination is whether on the facts of this case the activity giving rise to the offence was ancillary to agriculture and therefore needed development consent. If I determine as a question of fact that it was ancillary then that is determined in favour of the Defendants and case goes no further. If I hold that activity is not ancillary to agriculture so the Defendants' belief to the contrary is wrong, that is a mistake of fact, not law. 128 In the circumstances of this case it was an honest and reasonable mistake of fact because the Defendants had canvassed the issue with the Council through Mr Ryan and sought legal advice in relation to it. Their conduct on 12 and 13 April 2006 also suggests their honest and reasonable belief. From 12 April 2006 when the telephone call was made to Mr Ryan by Mr Johnson, to 21 April 2006 when the letter issued from the JPG annexing the development application, the company was keeping the Council informed of what it was doing. The telephone call on 18 April 2006 to Ms Gee from Mr Johnson was to let them know the work was being done that day. The letter dated 13 April 2006 annexed the plan which was the same plan given to Mr Friend by Mr Johnson. The explanation that they considered that what they were doing was lawful is consistent with their behaviour. 129 The issue of whether the LEP requires development consent does not arise. The determination of whether a matter is a question of law or a question of fact, or mixed fact and law was considered in Ostrowski. 130 The issues identified at par 49 in the Prosecutor's closing submissions (see par 110) do not include the issue of whether the activity of tree clearing (really land clearing) was ancillary to agriculture. But that is the belief at issue in the circumstances of this case. That is the preliminary issue which arises first and therefore the issues of law raised by the Prosecutor in par 49 (par 110) do not arise. The clearing of land for the purpose of the turf farm and plant nursery is ancillary to agriculture.

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Finding 134 The two offences charged are strict liability offences in relation to which the Defendants raise the defence of honest and reasonable mistake. The Defendants do not directly dispute the provisions of the LEP relied on by the Prosecutor but raise a defence which, if available, renders the LEP irrelevant. There are other issues raised by the Defendants to argue the Prosecutor has not established that the activities giving rise to the offence were directly authorised by the Defendants in any event. If the Defendants' submissions are correct the defence need not be considered. 135 The first issue to consider in relation to whether the Prosecutor has proved the charges is whether it has proved beyond reasonable doubt that Mr Sorenson pushed over the trees the subject of the charges in the proposed turf farm area on the land. (i) whether Mr Sorenson pushed over trees in turf farm area (Defendants' issue 3, par 118) 136 The evidence establishes that Mr Sorenson pushed over trees as identified in the Prosecutor's submissions at par 95 and he admits that he did in any event. His evidence that he knocked over the trees on 18 April 2006 is confirmed by Mr Ripper, the neighbour who noticed the work being undertaken on 18 April 2006 and took photographs, and made a complaint to the Council. Mr Sorenson refers to the photographs attached to the affidavit of Mr Ripper and confirmed in his own evidence that these showed his utility vehicle and bulldozer and the trees knocked over by him. He commenced work about 7 am. He states that he started at the north-western corner of the hatched area marked on the plan as that was closest to the entry to the property. He stopped for a tea break at about 9 am and Mr Johnson arrived with another person at about 11.30 am. Mr Sorenson did not know how many trees were knocked over by him. 137 The number of trees knocked over and where the fallen trees were located on the ground is identified by the evidence of the Council officers. Of the Council employees who gave evidence, Mr Ryan, Mr Hall, Mr Sproule, Ms Gee and Mr Pleffer attended the land for inspections in relation to the tree-felling.

[130]

144 The area of uncertainty in the evidence of the Prosecutor is in identifying where all the trees felled by Mr Sorenson were located in relation to the proposed turf farm boundaries as identified on the turf farm plan given to Mr Friend by Mr Johnson. As submitted by the Defendants (par 118), nowhere in the Council's evidence is the location of the felled trees plotted in relation to the turf farm boundaries. This is important in relation to the felling of the gum trees in particular as the turf farm boundary plan (annexures D and E to Mr Friend's affidavit) indicates trees on or outside the boundary of the turf farm which could be the first line of trees along the fence to which Mr Sorenson referred in his oral evidence. It is unknown whether this line of trees is that referred to by Mr Sorenson in his evidence when identifying where he started to push over trees. Precisely where Mr Sorenson commenced to knock over trees on the property is not identified as his oral evidence was framed in general terms. The transcript of that part of the evidence is set out in full above at par 82. That evidence is unclear. Based on that evidence the precise location of where he commenced knocking down trees is not accurately identified. There is no map provided with his evidence or anyone else's which identifies precisely where he commenced to knock over the forest red gum trees. 145 Given Mr Sorenson's evidence, the Prosecutor has not proved beyond reasonable doubt that the gum trees felled in the area marked in blue on exhibit K5 were within the turf farm area shown on the plan provided to Mr Friend by Mr Johnson. I note that in the memorandum attached to the affidavit of Ms Cummings in relation to DA278/06 lodged for the turf farm on 21 April 2006 she noted that the subject trees (which appears to be a reference to the significant trees identified on the development plan in the DCP which are the forest red gums) were not affected by that development application as these were located on the boundary of the proposed turf farm; see par 91. 146 The area where acacias were removed as identified in the red area in exhibit K5 is clearly within the turf farm boundary even in the absence of the evidence said by the Defendants to be missing. The Prosecutor has established that the black wattles felled by Mr Sorenson were within the proposed turf farm area. 147 The next issue to arise given this finding is whether the Defendants directly authorised the felling of trees on the land by WJ Friend Pty Ltd through its employee, Mr Sorenson, or authorised conduct which gave rise to the felling of trees. (ii) were Mr Sorenson's actions directly authorised by the Defendants? (Defendants' issue 3) 148 Has the Prosecutor proved beyond reasonable doubt that the clearing of trees by Mr Sorenson was directly authorised by the Defendants or that they authorised conduct which gave rise to the trees being felled? If that is not proved this prosecution fails and there is no need to determine the other issues raised by the Defendants' counsel. The Prosecutor relies on direct and inferential evidence, and admissions it submits were made in the letter of 21 April 2006 sent by Mr Johnson to the Council. Given my previous finding that the Prosecutor has proved the black wattles were cleared within the turf farm area, not the forest red gums, the issue of direct authorisation must be considered in that context. Direct evidence 149 In relation to the direct evidence relied on, the issue requires consideration of: (a) Mr Sorenson's written and oral evidence of what he was told to do by Mr Johnson and the evidence of what Mr Sorenson did, and (b) the written and oral evidence of Mr Friend as to the instructions he received from Mr Johnson and his evidence of what he told Mr Sorenson. 150 As to (a) and (b) above: (a) (i) In relation to what Mr Sorenson said he was told to do, his evidence is set out at par 79-85. He was given a copy of the turf farm plan (identical to the smaller size turf farm plan which is annexure E to Mr Friend's affidavit) by Mr Friend (who in turn received it along with a larger copy of the turf farm plan (annexure D to his affidavit) from Mr Johnson) when Mr Sorenson met Mr Friend at the office of WJ Friend Pty Ltd on 17 April 2006. He states (see par 82) that he was told to go along the fence line to a big group of trees along Johnston Street and start knocking over the trees in the turf farm area and then to wait for Mr Johnson to arrive for further instructions.

[134]

On one view therefore there is no discrepancy arising from the different wording used by Mr Friend when compared to Mr Sorenson's evidence. (ii) Another inference open on the evidence is that Mr Friend believed vegetation included trees. He made a handwritten note on the plan from Mr Johnson that trees in the south-east area of the land outside the turf farm area were protected. The turf farm plan had trees indicated on it. Mr Ryan's evidence is that turf farms are clear of trees so that turf can be grown fence to fence. (iii) The inference also arises from the hand written notation on the plan by Mr Friend that Mr Johnson's instructions were to clear vegetation including trees from the turf farm area shown on the plan. The note refers to trees suggesting that is the wording used by Mr Johnson when he told Mr Friend what was required. 152 Mr Friend could not recall the precise words used by him when he told Mr Sorenson what to do in his office on 17 April 2006. He gave Mr Sorenson the plan Mr Johnson had given him on site some four days before and told him to go to the land and clear the area of the turf farm. He was asked if he recalled if Mr Johnson stated that any particular trees or area in the north-eastern corner should not be cleared and he did not. Nor does he recall being shown any pegs or marks indicating the boundaries of the land to be cleared. He did write in the south-east corner that the trees here were protected. This gives rise to the inference that Mr Johnson did not tell him that any other trees were not to be cleared, including those in the turf farm area. 153 Mr Sorenson cleared trees on the morning of 18 April 2006 because that is what he believed he was asked to do. Given that he had worked for Mr Friend as a reliable employee for a number of years and that he can recall the conversations he had with Mr Friend I consider it is very likely that he was carrying out work he believed he was asked to do by Mr Friend. He was provided with the plan which Mr Johnson had given to Mr Friend. His recollection is clear that he was asked to commence work at the first line of trees along the northern fence line and then wait for Mr Johnson to arrive for further instructions. When asked in cross-examination whether Mr Friend told him to wait for instructions from Mr Johnson he stated that the main instruction was to tell him the exact position of the trees which were protected and that there was plenty of work to do before Mr Johnson arrived; see transcript extract at par 84, last sentence. 154 The Defendants' counsel submitted that the usual payment arrangement of WJ Friend Pty Ltd by an hourly rate was further evidence to suggest that Mr Sorenson was not authorised to do what he did by Mr Johnson. I do not consider that arrangement has any relevant bearing on the nature of the instructions received by Mr Friend from Mr Johnson. The matters raised in the cross-examination of Mr Sorenson as identified in the discussion at par 150(a)(iii) and (iv) do not undermine the probity of the evidence. The arguments of the Defendants' counsel that the instructions to Mr Sorenson were too vague to establish the offence are not accepted. 155 I consider the Prosecutor has established by direct evidence that there was direct authorisation of conduct which gave rise to the felling of the black wattles by Mr Sorenson. The instructions of Mr Johnson were communicated to Mr Friend who in turn instructed Mr Sorenson. Those instructions were to clear vegetation which included trees in the turf farm plan and authorised the conduct of Mr Sorenson which caused the black wattles to be knocked over. Inferential evidence 156 In addition to direct evidence, the Prosecutor argued that there was inferential evidence which supported a finding of direct authorisation of the clearing of trees by Mr Johnson. This was the payment of invoices sent by WJ Friend to JPG for the work done by Mr Sorenson. Further, there is no evidence that Mr Johnson or anyone else from JPG stated that W J Friend Pty Ltd had carried out unauthorised work to either Mr Friend or Mr Sorenson or anyone from the Council. This inferential evidence further strengthens, but is not essential to proving, the Prosecutor's case. Admission of guilt 157 The Prosecutor also argued there was an admission of guilt that there was to be tree clearing on the land by the Defendants in the letter of 21 April 2006 to the Council. A substantial part of the letter of 21 April 2006 from Mr Johnson on a JPG letterhead is set out at par 47(iv). That refers to "necessary vegetation removal" in the second paragraph. It does not specifically refer to the clearing of trees. It does not reflect the terms of the telephone conversation with Mr Johnson on 12 April 2006 according to Mr Ryan in two respects. Firstly, Mr Ryan attested in his oral evidence to the effect that there was no reference to vegetation removal by Mr Johnson. Secondly, Mr Ryan's evidence is that he told Mr Johnson he should put everything in writing to the Council. He did not give advice to Mr Johnson that the tree farming activity did not require development consent. The letter sent by Mr Johnson dated 13 April 2006 deals only with whether development consent was required for the turf farm and that is the focus of the telephone discussion attested to by Mr Ryan. 158 I consider Mr Ryan's evidence concerning the telephone conversation on 12 April 2006 should be accepted. His recollection appears to be clear. He stated that there was no reference by Mr Johnson to the necessity for the removal of vegetation or trees for the proposed turf farm. Nor did he provide a view on whether development consent was required. Nothing put to him in cross-examination undermined his recollection of that conversation. The letter sent by the Defendant company signed by Mr Johnson dated 13 April 2006 also makes no reference to the intention to clear vegetation and/or trees. I agree with the Prosecutor's submission that it is surprising that was not included in the letter if it was a matter referred to in the conversation with Mr Ryan. 159 Given Mr Ryan's firm view that clearing of native vegetation would have required development consent it is unlikely that he would not recall Mr Johnson asking him a question on such an issue. His evidence is also confirmed by the minute he dictated on 18 April 2006 which became exhibit L. This was dictated by him the day after the conversation and is likely to be accurate given its close proximity in time. The relevant text is set out at par 34. Mr Ryan's belief that the clearing of vegetation would require development consent was also stated in his letter dated 19 April 2006 to Mr Johnson. That letter replied to the letter from Mr Johnson dated 13 July 2006. 160 The statements in the letter of 21 April 2006 sent by Mr Johnson to the Council as to the contents of the telephone conversation with Mr Ryan on 12 April 2006 in terms of there having been a reference to vegetation removal are incorrect. The statements to Ms Gee by Mr Johnson in the telephone call he made to her on 18 April 2006 to tell her that he would be removing trees also suggests he was aware that tree removal was always intended in the turf farm area. 161 I agree with the Prosecutor that there is an implied admission in the letter that the vegetation removal did include the clearing of some trees (black wattles) in the turf farm area given that it was sent after the tree clearing on 18 April 2006. There was also an admission to that effect in the telephone call by Mr Johnson to Ms Gee on 18 April 2006 in which he referred to the clearing of trees. The admission is general only in that the trees to be knocked over are not specified. It does support the evidence of authorisation of Mr Friend to knock over trees in the turf farm area. 162 The direct evidence is sufficient to establish that there was direct authorisation of conduct giving rise to the removal of the black wattle trees but not the forest red gums. It is supported by the inferential evidence and the evidence of admissions made.

[135]

163 The exception to the principle that a principal cannot be vicariously liable for the acts of an independent contractor where acts are directly authorised has therefore been established although not in relation to all the trees particularised in the Prosecutor's case. That exception is identified in Stoneman v Lyons and Kondis as stated in the Prosecutor's submissions (par 12). Liability on this basis does not appear to have arisen in many criminal cases but can apply as I note below at par 179. (iii) were Mr Sorenson's actions in the course of his employment by WJ Friend Pty Ltd 164 I agree with the Prosecutor's submissions that Mr Sorenson did the tree clearing in his capacity as an employee of WJ Friend Pty Ltd on instructions from Mr Friend. There can be no suggestion he was on a "frolic" of his own (see State of New South Wales v Lepore and Anor; Samin v State of Queensland and Ors; Rich v State of Queensland and Ors (2003) 212 CLR 511 at [40]-[41] per Gleeson CJ). Given that the Prosecutor is relying on direct authorisation I do not consider that the Defendants can be liable for all the actions of Mr Sorenson, however, only for those which are established as being directly authorised. The Prosecutor has not established that the forest red gum trees knocked over were within the turf farm area only that the black wattle trees were. (iv) whether defence of honest and reasonable mistake of fact available (Defendants' issue 4) 165 The Defendants' counsel argued that the Defendants' belief that the activity of clearing vegetation was ancillary to agriculture was an honest and reasonable mistake of fact. That is a defence to the two prosecutions for these strict liability offences. The fundamental question, the Defendants' counsel argued, is whether the clearing of trees is ancillary to agriculture as a matter of fact. The determination of that fact by the Court determines the outcome of this case in the Defendants' submissions. Further there is evidence that this was the Defendants' belief. They had a letter from their solicitor to that effect. The letter written by Mr Johnson dated 21 April 2006 also refers to this belief. 166 Proudman v Dayman (1941) 67 CLR 536 per Dixon J at 540 held that an honest and reasonable mistaken belief in a set of facts will only exculpate an accused if the truth of the belief would mean that no offence was being committed, making the accused's act innocent. This is described as the common law position which applies in NSW (LexisNexis, Criminal Practice and Procedure New South Wales (at 24 April 2008) [6-600]). The defence applies where if the facts believed by the accused were true the accused would have committed no offence and not some other offence than the one charged; Bergin v Stack (1953) 88 CLR 248 per Fullagar J at 262. 167 In He Kaw Teh v The Queen (1985) 157 CLR 523 it was held that the defendant bears the evidential burden of providing evidence of an exculpatory mistake of fact or pointing to evidence in the prosecution's case from which such a mistake can be inferred. Once raised the prosecution must prove that the accused did not hold the belief honestly or that it was not reasonable to hold the belief in all the circumstances. 168 In He Kaw Teh Dawson J held that there was no special onus placed on a defendant who relies on the defence of honest and reasonable mistake of fact; "No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused" (at 592). 169 In Ostrowski, the High Court unanimously reversed a decision of the Full Court of the Supreme Court of Western Australia which had set aside the respondent's conviction for the strict liability offence of fishing for lobster in a prohibited area. The respondent argued that he had made specific enquiries of the regulatory authorities, who had furnished him with incorrect information. Accordingly, the respondent argued he was under an honest and reasonable belief that fishing in the area was not prohibited when in fact it was. Mistake of fact, as relied on by the respondent, was a defence as provided by s 24 of the Criminal Code (WA). Gleeson CJ, Kirby, McHugh, Callinan and Heydon JJ held that the mistake was due to ignorance of the law and the respondent could not rely on s 24 as he had no mistaken belief about any of the elements of the offence. Erroneous advice on the part of the authorities, as McHugh J noted at [53], could not "convert a mistake as to the applicable law into a mistake of fact". His Honour further noted that: [ i]f a defendant knows all the relevant facts that constitute the offence and acts on erroneous advice as to the legal effects of those facts, the defendant, like the adviser, has been mistaken as to the law, not the facts.

[137]

Mistake of law or fact? 171 A mistaken belief in the legal effect of facts known to the accused is a mistake of law and the defence does not apply unless there was a mistake in relation to an element of the offence; Ostrowski. 172 The Prosecutor argued that the mistake of fact did not relate to any of the elements of the offence and could not therefore arise in any event per Ostrowski. This approach is also supported by Von Lieven v Stewart; Kemish v Godfrey (1990) 21 NSWLR 52 where the accused mistakenly believed that the act in question was lawful because it was unregulated or because the requirements of the law had been satisfied. This was held to be a mistake of law. No case law is cited by the Defendants to support their argument that the LEP cannot arise in the circumstances where they argue the clearing for the turf farm is ancillary. Either of the two bases relied on by the Prosecutor to establish the breach of the LEP (under cl 7 and cl 9 or cl 36 of the LEP, see par 8, 9) apply to the circumstances of this case. I agree with the Prosecutor that the Defendants' mistake is one of law based on a given set of facts or beliefs held by the Defendants and falls squarely within the findings in Ostrowski at [59] per McHugh J. Evidence of belief if mistake of fact 173 If I am wrong and the matters raised by the Defendants' defence concern a mistake of fact I will also consider the matter on this basis. The Defendants relied on the conversation on 18 April 2006 between Mr Johnson and Mr Ryan. This was said to be relevant to proving Mr Johnson's state of mind in relation to the events giving rise to the charges which took place on 18 April 2006. The terms of the solicitor's letter dated 11 April 2006 were also reflected in what Mr Johnson said to Mr Ryan on 18 April 2006. The telephone discussion on 18 April 2006 with the Defendants' solicitor present by telephone was also relied on as suggesting Mr Johnson had that belief. The letter from Mr Johnson on behalf of JPG dated 21 April 2006 also refers to the clearing being ancillary to agriculture. This evidence does establish that there was an expression of belief by the Defendants on or before 18 April 2006 (the offence date) in reliance on the advice of their solicitor that the clearing of vegetation was ancillary to agriculture. Evidence of fact? 174 As identified in He Kaw Teh above the Defendants do not have to establish the mistake of fact beyond reasonable doubt but must rely on some evidence to support the existence of such a mistake. The Defendants did not go into evidence and must consequently rely on the Prosecutor's evidence.

[138]

175 The Prosecutor's evidence does not address the issue and the Defendants did not make submissions about the evidence at all as proving such a fact. It is not self evident whether the extent of the clearing was ancillary to the agricultural use in light of the LEP. The civil cases referred to by the Prosecutor to argue that the use of land for tree clearing was independent of any purpose of development for agriculture and was thus not ancillary to use for the purpose of agriculture were Lizzio, CB Investments Pty Ltd v Colo Shire Council, O'Donnell. In all those cases the relevant court had to determine whether a particular use of land was ancillary to another use and that was a matter of fact and degree that had to be determined in the circumstances of each case. For example, in Lizzio, the use of land for the selling of flowers was held to be an independent use of land from its use for a dwelling house and it was therefore not ancillary and a prohibited use. The only reference to the extent of the clearing is a statement in the letter from Mr Johnson dated 21 April 2006 to the Council that only 4 per cent of the land intended to be used was to be cleared. The solicitor's letter dated 11 April 2006 refers to nominal clearing. No submission was made in reliance on that evidence. The Prosecutor's evidence is that approximately 200 black wattles were cleared by Mr Sorenson on 18 April 2006 and he estimated the clearing work required would take two or three days in total. 176 No specific reference was made by the Defendants' counsel to any evidence to enable me to determine whether the level of clearing contemplated was ancillary to agriculture as a matter of fact and degree. The Defendants' submissions on the evidence were directed to establishing the Defendants had a belief concerning this fact. No facts have been referred to which could establish that to be the case as a matter of fact and degree. I do not think the Defendants have established to any degree the existence of the facts underpinning the belief relied on in the context of these offences. Accordingly while there is evidence of a belief, the factual basis for such a belief is not established at all by the Defendants. 177 It is also necessary if a mistake of fact is to be relied on that it have sufficient particularity to the offence charged. I do not consider this existed on the limited evidence available. My view in this regard is strengthened by the judgment in State Rail Authority v Hunter Water Board (Gleeson CJ, Cripps JA and Slattery AJ concurring) at 725F - 726B. That case was concerned with an offence of polluting waters under the Clean Waters Act 1970 and held that inadvertence or mere lack of knowledge that a polluting event was occurring or likely to occur, based on a general assumption that everything was in order, would not be sufficient to establish a mistaken belief. A belief in certain facts which, if true, would take the conduct outside the offence requires a positive belief about specific matters which relate to the elements of the particular offence. In this case the Defendants are seeking to rely on a general belief that the clearing of native vegetation including trees was ancillary to the turf farm use which was agricultural. That belief is general and is not related in the evidence to the particular clearing required for the turf farm. I do not consider a sufficiently specific belief in certain facts which, if proved, would mean there was no offence has been established. 178 I do not consider the defence of honest and reasonable mistake of fact is therefore available to the Defendants. 179 No cases in this Court (or other courts) where vicarious liability on the basis of direct authorisation has been found in a criminal context were referred to by the Prosecutor. There are numerous cases where it has been recognised as a basis for criminal liability as the Prosecutor has identified; see EPA v Multiplex at [278]; Director-General v Greentree at [92]; Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at [104] - [106]; Coffs Harbour City Council v Michael John Hickey; Coffs Harbour City Council v Marcus Monroe Hickey [2004] NSWLEC 531 at [52] - [53]. In those cases the exception to a principal not being liable for the acts of an independent contractor on the basis of the exercise of care and control by the principal was being considered. I consider that direct authorisation can be a basis of liability in the circumstances of this matter. 180 It is clear from the evidence that the contractual arrangement giving rise to vicarious liability in this case was between the Defendant company JPG and WJ Friend Pty Ltd. The offence against JPG has therefore been proved beyond reasonable doubt. The issue now arises of whether Mr Johnson can also be found guilty of the same offence.

[139]

(iv) Liability of both Defendants on the basis of direct authorisation (Defendants' issue 2) 181 The Prosecutor argued that both Defendants were guilty of the same offence which was based on direct authorisation of conduct giving rise to the acts the subject of the offences. The Defendants' counsel argued that both Defendants could not be liable on the same basis as on the facts of the case only one of them authorised the activity. Mr Johnson could only be liable on an accessorial basis and this was not the Prosecutor's case. 182 There are a few cases, referred to by the Prosecutor, where a company and an individual director have been charged with the same offence with liability arising on the same basis; Penrith City Council v 24/7 Waste Bins Pty Ltd & Anor [2002] NSWLEC 186 dealt with an offence arising under ss 76A(1) and 125(1) of the EP&A Act. Environment Protection Authority v Pannowitz; Environment Protection Authority v Steepleton Pty Limited [2005] NSWLEC 175 dealt with an offence that arose under s 143(1)(a) and s 169(1) of the Protection of the Environment Operations Act 1997 which specifically provided for directors to be held liable in addition to the corporate defendant. Gosford City Council v Beresford and Beresford Concrete Products Pty Ltd [2001] NSWLEC 43 and Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593 dealt with offences by corporate defendants and individual directors under s 16 of the now repealed Clean Waters Act. These cases, with the exception of Gilmour, were all pleas of guilty. 183 Two defendants can be charged with the same offence depending, of course, on the particular offence and the basis of liability. In the cases referred to by the Prosecutor the charge and basis for liability was the same. In this matter I have held the corporate Defendant JPG contracted with WJ Friend Pty Ltd to have the clearing work undertaken on the land. The Prosecutor also argued that Mr Johnson was guilty of the same offence. The basis for his liability as I understand the Prosecutor's primary argument is different to the company. 184 As I consider in section (vi) below, the primary basis for liability relied on by the Prosecutor in relation to Mr Johnson is that he was the "embodiment" of the company. Mr Johnson's liability on this basis is grounded in but is separate from the liability of JPG on the basis of the direct authorisation of the conduct giving rise to the actions of WJ Friend Pty Ltd. It is appropriate in those circumstances for the charge against Mr Johnson to be in the same terms as that against the company.

[142]

(see also Tiger Nominees at 717 per Gleeson CJ (Campbell J and Mahoney JA concurring); EPA v Caltex at 514 per Brennan J) 188 I consider, contrary to the submissions of the Defendants, that Mr Johnson's liability on this basis has been established beyond reasonable doubt in this case. Mr Johnson is the sole director of JPG, he instructed Mr Friend to have Mr Friend's company do the clearing work at the land about five days before 18 April 2006, he called Mr Ryan at the Council on 12 April 2006 to ask his advice, signed the letter sent on 13 April 2006 to Mr Ryan, called Mr Ryan on 18 April 2006 and met him on site, called Ms Gee on 18 April 2006, sent the letter dated 21 April 2006 with the development application to Mr Ryan at the Council and issued the turf farm development application as the owner, and the applicant as the director of the respective companies (Bona Vista Properties and JPG), and sent the letter dated 21 April 2006 to Ms Gee. 189 There is evidence that Mr Hedge carried out duties for JPG. He was contacted by Mr Ryan on 18 April 2006 about the clearing on the land and the solicitors letter attached to the 13 April 2006 letter was addressed to Mr Hedge as he issued the subdivision development application lodged in 2006 on behalf of the applicant, JPG. That does not undermine the strength of the evidence relied on by the Prosecutor in relation to Mr Johnson. It is not necessary to establish that every action carried out by the company was done by Mr Johnson. The fact that events took place over a short space of time is also irrelevant. 190 While the Defendants' counsel referred to Mosman Municipal Council v Waratah Village Partners Pty Ltd [2002] NSWLEC 184 as a case where far more detailed evidence was relied on to establish whether the actions of an agent were attributable to the company, the facts of that matter were quite different. The actions of an agent were being considered, not a sole director. Motive 191 Although not necessary to prove the offence, the Prosecutor argued that the evidence enables the inference to be drawn that Mr Johnson deliberately lied about his intentions in relation to land clearing so that he could obtain a benefit as a result of the significant gum trees, in particular, being removed. The Prosecutor relies on the affidavit of Ms Cumming in relation to the greater lot yield which could be obtained on part of the land if the significant vegetation identified in the DCP development plan was removed. 192 The evidence said to give rise to a finding of motive must be weighed in light of the fact that I have found there was not direct authorisation of the removal of the thirteen significant gum trees which Mr Sorenson knocked over. These trees were identified as significant in the DCP and their removal would remove a possible impediment to greater lot yield on the land according to the Prosecutor. As it has not been proved that the Defendants directly authorised their removal however, this cannot form part of the case on motive which the Prosecutor seeks to mount. 193 The turf farm area was to be the final area of the proposed subdivision to be developed. Mr Johnson stated in his letter of 21 April 2006 to Ms Gee that it would be used in conjunction with the earlier stages of the subdivision proposal. 194 Further, and as the Defendants submitted, steps were taken to inform the Council of the work intended to be undertaken on the land in relation to the turf farm area on 13 April 2006 with the letter to the Council and the telephone call on 18 April 2006 to Ms Gee at about 9 am. While I have found that the communication from Mr Johnson on 12 and 13 April 2006 did not disclose to the Council the intention to clear the vegetation in the proposed turf farm area on the land, the call to Ms Gee by Mr Johnson on 18 April 2006 did, albeit purportedly relying on advice which I have held Mr Ryan did not give in the telephone call of 12 April 2006. In these circumstances I do not consider the Prosecutor has made out the case it argued on motive.

At a glance

Court

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Judgment (144 paragraphs)

Cases Cited (24)

Cited By (5)