Mantel v Anstee and Anor.

IN THE LAND AND Matter No. 50030 and 50031 of 2001 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 31 August 2001

In these two related class 5 proceedings alleging an offence against the s 125, Environmental Planning and Assessment Act 1979 (EP&A Act) committed by each of the Defendants between 1 April and 4 July 2000, two issues have been raised for adjudication in consequence of the announcement by the Prosecutor at the commencement of the hearing of the trial (agreed to be heard concurrently) that it did not wish to proceed with either prosecution, namely (i.) the Prosecutor's application to withdraw both proceedings in respect of each charge; and (ii.) each Defendant's application for costs in the proceedings.

The two issues are interrelated inasmuch as if the Prosecutor were given leave to withdraw the proceedings, the availability of the Court's statutory power to order costs in response to each of the Defendant's application for costs would be thrown into considerable doubt.

In these circumstances, it becomes imperative in the interests of justice to seek to harmonise the interplay of the two applications so that each may be fairly adjudicated upon the substantial merits. B. THE INTERPLAY BETWEEN APPLICATIONS - (i) TO WITHDRAW CHARGES AND (ii) FOR COSTS ORDERS AGAINST THE PROSECUTOR

The Court's power to order costs in class 5 proceedings is exclusively governed by s 52 of the Land and Environment Court Act 1979 (LEC Act), since the general costs power conferred by s 69 of that Act is expressly declared "not to apply to proceedings in class 5, 6 or 7 of the Court's jurisdiction": vide s 69(8). (I put aside any question of the availability of the different power conferred by the Costs in Criminal Cases Act 1967 which power is predicated upon the acquittal or discharge of the defendant "after a hearing on the merits": vide s 2.)

The costs power conferred by s 52 is limited to the circumstances outlined in subsection (1) which provides as follows:

(1) Where a Judge: (a) convicts any person of an offence punishable in the summary jurisdiction of the Court, (b) makes an order dismissing the charge for any such offence, or (c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).

Since the power to order the prosecutor to pay the defendant's costs is in express terms limited to the case where "an order is made dismissing the charge for any such offence" that power would not be enlivened in a case where the proceedings charging the offence are, with the Court's leave, withdrawn by the prosecutor, without any hearing on the merits. This would inevitably be the case because a withdrawal of the charge would not justify or support an order "dismissing the charge' for the reasons given in the Irish case Rex (McDonnell) v Tyrone Justices (1912) 2 IR 44 in the following passages which were cited and expressly approved by the English Divisional Court in Regina v Phipps Ex Parte Alton (1964) 2 QB 420 at 426/427:

In that case Palles C.B. said: In my opinion, the permission given by the justices to withdraw the first complaint did not amount to an acquittal. The order involved no more than the consent of the justices that the question of the guilt or innocence of the defendant in the summons should be withdrawn from their cognisance, that is, that they should not adjudicate upon it. There was, therefore, an absence of adjudication. He goes on to consider the effect of a withdrawal, and holds that it does not amount to an acquittal. Gibson J. said3: Withdrawn cannot be an acquittal; it is not an adjudication at all; it only shows why the court is not required to hear or determine; and it could not absolve the defendant from prosecution by another common informer.

2Ibid. 48. 3[1912] 2 I.R. 44. 52

Although this fundamental point was not recognised in the competing arguments (which addressed the question of costs, in consequence of the common anticipation that leave would be granted for the prosecutor to withdraw the proceedings thereby enabling the disputed costs question to be determined on the merits) considerations of fairness require me to pause so as to reconsider the question of granting leave to withdraw the proceedings in a manner that results in the preservation of the integrity of the Defendants' applications for costs so that that disputed question may be determined on the merits, rather than being inevitably defeated by a side wind being a result which neither party had considered or contemplated.

My approach to the two questions raised by the present proceedings accords with the approach commended by Lord Parker CJ in giving the judgment of the Divisional Court in Regina v Phipps Ex parte Alton in a situation, where a trial court is faced with an application by the prosecutor for leave to withdraw the summons, and an application by the defendant for costs in the proceedings.

Lord Parker CJ, having concluded that by granting leave to the informant to withdraw the information, the magistrate "had placed beyond his cognisance" the question of the defendant's innocence or guilt and that in consequence, there was no basis upon which the magistrate could exercise the costs power conferred by the Costs in Criminal Cases Act 1952, his Lordship expressed the following opinion at 428:

Having said that, I would like to add that the position is not as bad as it would at first appear, because it is always a matter for the discretion for the court whether it allows the process to be withdrawn. There are a number of factors which would enter into the consideration preceding the exercise of the discretion. There would, in the case of a summary trial, be questions such as: are all the defendant's witnesses here?; is the nature of the offence such that the defendant should be acquitted, which will prevent further proceedings being brought, whereas a discretion to allow process to be withdrawn will not amount to an acquittal? There is also the consideration, arising from what I have said, that the defendant may have incurred costs and desire to recover those costs, or have an opportunity of recovering those costs which he will not have if the summons is withdrawn.

To take the present case, I conceive it would have been possible for counsel for the applicant at once to object to the suggested withdrawal of process; to insist so far as he could, having regard to the fact that he had incurred costs, that the inquiry should begin; that he should then have an opportunity of having it dealt with summarily; and, the prosecution offering no evidence, have the charge dismissed and an acquittal and such costs as he could get under the Costs in Criminal Cases Act, 1952. While at first sight there is a lacuna in the Act, it seems to me that it is fully covered by the right that an accused person has to object to the suggested withdrawal, and the discretion which the magistrate himself has whether that withdrawal shall be allowed or not. The difficulty in the present case is that counsel was there, and, without blaming him in any way, because the court itself has spent many hours in considering this problem, did not realise the difficulty he was in in regard to costs if the process was allowed to be withdrawn; in other words, he did not appreciate the difference between withdrawal and dismissal.

In my respectful opinion, considerations of fairness require me to exercise the judicial discretion as to whether leave should be granted to the prosecutor to withdraw the proceedings against each of the defendants in a manner that preserves the integrity and efficacy of each of the Defendant's application for costs in the present proceedings, so that those disputed applications might be adjudicated upon the merits.

The appropriate adjudication producing such an outcome, might involve that suggested by Lord Parker CJ, namely that of refusing leave for the prosecutor to withdraw the proceedings and, in consequence of the prosecutor offering no evidence in support of the charges, thereupon dismissing the charges. Alternatively and arguably, the Court might grant leave to withdraw the proceedings, subject to the payment of each of the Defendant's costs if on the merits of their costs applications the Court were satisfied that there should be a costs order made in their favour.

However, (and without the benefit of argument on the question) it would appear to me that the former approach far more obviously satisfies the express precondition imposed by s 52(1) for a costs order to be made in favour of a defendant and accordingly, I propose to adopt it. In adopting it, I note that there is no prejudice caused to the Prosecutor by "the dismissal" of the charges rather than "the withdrawal of" the charges because the Prosecutor has fairly conceded that the 12 months statutory limitation period imposed by the EP&A Act, s 127(6) in respect of an offence against that Act has already expired (so that there is no legal possibility of fresh charges being laid in the present cases, as would be the consequence of the withdrawal, rather than the dismissal, of the charges). C. SHOULD A COSTS ORDER BE MADE IN FAVOUR OF THE DEFENDANTS?

This question is premised upon the uncontentious fact that the charges against the Defendants are to be dismissed on the basis that the Prosecutor offers no evidence in support of the charges (having sought the Court's leave to withdraw the charges, being an application that was uncontested and would have been readily granted but for the need in the interest of justice to preserve the availability of an adjudication on the merits of the Defendant's costs applications in the proceedings).

Although there will have been no hearing on the merits, the dismissal of the charges against each of the Defendants, nonetheless results in the inevitable conclusion highly relevant to the disputed costs question, that the Defendants have been successful in the proceedings. That result enlivens the Court's power to make a costs order in favour of the Defendants - the question now being how should the Court exercise its statutory discretion?

A number of principles governing the exercise of the Court's statutory discretion conferred by the LEC Act, s 52(1) to order the prosecutor to pay the defendant's costs may be deduced from the majority judgments of the High Court of Australia in Latoudis v Casey (1990) 170 CLR 534.

These principles may be stated as follows: (i.) the discretion is broad and unfettered; (ii.) the purpose of the discretion is to enable a successful party to be compensated for costs incurred in the proceedings rather than to punish the unsuccessful party; (iii.) the reasonableness of the prosecutor's conduct in bringing the proceedings is not relevant to the exercise of the discretion; and (iv.) principles governing the exercise of the discretion may be approximated to the principles that have been held to be relevant to the exercise of discretion in respect of costs in civil litigation.

The disputed question of costs in the present case focuses attention upon the last-mentioned principle because in resisting the Defendants' applications for costs, the Prosecutor has submitted that the Defendant's conduct (i) in failing to inform the Council or its Solicitors of their version of the facts when given an opportunity to do so, before the proceedings were brought against them, and thereafter (ii) in failing to inform the Council's Solicitor of their version of the facts until two days before the hearing date fixed for the trial, relevantly disentitle the Defendants to a costs order in their favour.

Although it will be necessary to examine the relevant facts asserted by the Prosecutor, I interpose at this point the observation that the decided cases, (both civil and criminal) have established the principle that a successful defendant, may by his or her conduct in, or in connection with the proceedings, became disentitled to a costs order which otherwise, as the successful litigant, he or she would have a reasonable expectation of obtaining. Such disentitling conduct is often described in the cases as "the defendant bringing the proceedings upon himself or herself".

The question of such disentitling conduct by the successful defendant was considered in Latoudis in each of the majority judgments, as a qualification to "ordinary" expectation that a successful defendant will obtain an order for costs. (In that case the High Court by majority, allowed the appeal and ordered the prosecutor to pay the successful defendant's costs in the proceedings determined by a magistrate).

Mason CJ expressed the following opinion at 544:

Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.

I agree with Toohey J. that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unreasonably, it would be just and reasonable to make an award for a proportion of the defendant's costs.

Toohey J at 565/6 relevantly said: It is unnecessary to speak in terms of a presumption; it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket. Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them. To return to the examples given earlier in this judgment, if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, Reg. -v- Dainer; Ex parte Milevich (14). This has nothing to do with the right to silence in criminal matters. A defendant or prospective defendant is entitled to refuse an explanation to the police. But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award of costs, when an explanation might have avoided the prosecution. Again, if the manner in which the defence of a prosecution is conducted unreasonably prolongs the proceedings, for instance by unnecessary cross-examination, neither justice nor reasonableness demands that the successful defendant be indemnified, at any rate as to the entirety of the costs incurred. These illustrations are in no way exhaustive but what they point up is that a refusal of costs to a successful defendant will ordinarily be based upon the conduct of the defendant in relation to the proceedings brought against him or her. (14) (1988) 91 F.L.R. 33

Finally, McHugh J at 569 said: Likewise, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution. Consequently, a magistrate ought not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings. cf. Ritter v. Godfrey (24); Sunday Times Newspaper Co. Ltd. v. McIntosh (25); Redden v. Chapman (26); Schaftenaar (27); see also McEwen v. Siely (28). Thus, non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs: cf. Reg. v. Dainer; Ex parte Milevich (29). (24) [1920] 2K.B. 47, at pp. 53, 54-60, 66 (25) (1933) 33 S.R. (N.S.W.) 371, at p.377 (26) (1949) 50 S.R. (N.S.W.) 24, at p.25 (27) (1975) 11 S.A.S.R., at pp. 274-275. (28) (1972) 21 F.L.R. 131, at p. 136 (29) (1988) 91 F.L.R. 33.

The passages recited from the judgments of Toohey J and McHugh J each cites, as an illustration of relevant disentitling conduct by a successful defendant, the decision of Miles CJ in the Supreme Court of ACT in The Queen -v- Dainer Ex parte Milevich (1988) 91 FCR 33 where his Honour considered and applied the following statement of principle found in the earlier decision of the Full Court of the Supreme Court of ACT in McEwen v Siely (1972) 21 FCR 131:

generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unfair to award him costs

In Dainer, an acquitted defendant was seeking to quash by way of prerogative relief, an order of the magistrate refusing an application for costs made by the defendant who had been charged with assault and malicious property damage. At his trial, the defendant had introduced into evidence a tape recording of the conversations that had occurred at the time of the alleged assault and property damage. In dismissing the charge, the magistrate had made it clear that it was the evidence provided by the defendant's tape recording that had raised a reasonable doubt in his mind about how the incident complained of had commenced, and that it was the evidence creating this doubt, that had compelled the defendant's acquittal.

Miles CJ, in holding that no error on the magistrate's part, in refusing the defendant's application for costs, had been established, said at 35/36:

The deliberate recording by means of a tape-recorder on the part of one of the parties of the conversations which were central to the events in dispute was clearly connected with those events. So too was what the Magistrate was entitled to regard as a deliberate omission by that party or by those representing him, to disclose the existence of that tape to the other side. These two factors cannot be said to be irrelevant for the purpose of deciding costs, whether one has regard to the question whether the defendants have by their conduct brought the proceeding upon themselves or whether one has regard to the question whether other considerations make it unjust to award them costs. Clearly minds may differ as to the importance of the omission to disclose the tape-recording as it affects the question of whether the defendants ought to have been granted their costs. It may have been a wise tactical move for the purpose of cross-examination of the informant's witnesses. If their evidence conflicted with the tape it could be used to cross-examine them. If their evidence did not conflict with the tape then presumably its existence would not have been disclosed. But whether the view be taken that nondisclosure was a sufficient reason or an insufficient reason to deprive them of their costs is beside the point. The point is that it was a relevant matter to be taken into consideration. The error on the part of the Magistrate has not been made out.

In Farrell v Bridge (unreported 4 February 1991 but decided before the decision in Latoudis had been reported) I had occasion to consider what precisely was meant in the context of the question of costs, by the long established notion of "conduct bringing the proceedings upon himself" when I said at pp. 6/7:

The notion of the Defendant's conduct bringing the proceedings upon himself , though long established as a dis-entitling factor in civil litigation is not entirely clear as appears from the judgment of Atkin LJ in Ritter v. Godfrey (1920) 2 K.B. 47 when His Lordship states that the defendant has brought about the litigation when he:

…has so conducted himself as to lead the plaintiff reasonably to believe that he had a good cause of action against the defendant, and so induce him to bring the action. The authority for this proposition is Bostock v. Ramsey [1900] 2 Q.B. 616. It is wide, for in terms it is not limited to unreasonable or improper conduct, or to conduct other than that which constitutes the alleged cause of action. Inasmuch as the bringing of many actions of contract and most actions of tort is due to the effect upon the plaintiff's mind of defendant's conduct, and the effect is at any rate to induce a belief that the plaintiff has a good cause of action, it would appear to follow that provided the belief was reasonable the judge in all such cases has grounds for depriving a successful defendant of costs. I presume e converso there would be grounds for dealing with a successful plaintiff's costs when his conduct has induced the defendant reasonably to believe that he has a good defence.

I am inclined to think therefore that the propositions in Bostock v. Ramsey [1900] 2 Q.B. 616 should be read subject to the first, if not also the second, of the limitations suggested above - i.e., subject to the conduct being unreasonable or improper, and being conduct other than that which constituted the alleged cause of action.

In the context of criminal proceedings I would respectfully adopt and apply Atkin LJ's opinion that the relevant conduct is conduct other than that which constitutes the alleged criminal act.

This I think must be the meaning intended in the formulation of the exception in McEwen v. Siely because otherwise costs would never be awarded to acquitted defendants of whom it could be universally said that they (by virtue of their alleged criminal conduct) had brought the proceedings upon themselves. Accordingly there is nothing in the Defendant's conduct prior to the institution of the proceedings which attracts the exception to the general costs rule.

This passage was quoted in Owen v Willtara Constructions Pty Ltd (unreported 7 December 1996) immediately before I stated at par 37:

I do not understand what I said in Farrell v. Bridge to be contrary to anything said in the majority judgment in Latoudis concerning the notion of a defendant bringing proceedings upon himself .

In Willtara, where I declined to order costs in favour of an acquitted defendant, I held at par 42 that the defendant "must be held to have brought the proceedings upon itself" and that that finding provided "a substantial justification for denying the acquitted Defendant its costs, which otherwise, as the successful party, it had a reasonable expectation of obtaining".

The relevant conduct of the defendant in Willtara (where the charge was of the statutory offence of "disposing of waste upon public land without authority" - see 103 LGERA 137) was the making of a representation to the Council Inspector that stockpiled excavation material would be removed from the road reserve when in fact it was not removed, but even more material was thereafter stockpiled on the road reserve. Of this conduct, I said at par 40:

In my opinion, the tardiness of the Defendant to remove the stockpiled excavated material from the road reserve and to protect it by siltation fencing, notwithstanding its representations made on 4 September 1997 to the Council's Inspector so to do probably had a very significant influence on the Council's decision to bring the charge against the Defendant. Probably, had the Defendant acted promptly in fulfilment of its representation to the Council Inspector who first observed the material placed on the road reserve on 4 September 1997 , the present proceedings would not have been brought against the Defendant. At paragraph 95 of my reasons for judgment I described the Defendant's conduct as selfish and irresponsible and it is reasonable to suppose that the Council took the same view when confronted by the Defendant's apparent indifference to the Council's legitimate authority and responsibility for the public road upon which the excavated material had been impermissibly stockpiled. In this very real sense, the Defendant must be regarded as having brought the proceedings upon itself.

There was another aspect of the defendant's conduct in Willtara which I held supported my conclusion that the Defendant had brought the proceedings upon itself. This is dealt with in the following passage at par 41:

There is another aspect of the Defendant's conduct, which supports my conclusion that the Defendant brought the proceedings upon itself, namely the fact that not until it gave evidence at the trial, did the Defendant indicate that much of the stockpiled material was ultimately (some 10 weeks after its original deposition in the road reserve) redeployed in backfilling operations on the construction site. Had this information been given to the Council when it had encountered the stockpiled material in the road reserve and when it was seeking remedial action from the Defendant and during the course of its investigations into the matter, it is probable that the Council would not have laid the charge against the Defendant, or having laid it, not prosecuted the proceedings. This is the type of conduct by a defendant specifically referred to in the majority judgments in Latoudis and is the type of conduct upon which Stein J in Environment Protection Authority v. Barton (unreported 23 April 1993) based his decision, not to award costs in favour of the acquitted defendant.

It is now necessary to examine the relevant facts to determine whether the Council's assertion of disentitling conduct by the Defendant has been established.

On 8 March 2001, the Prosecutor filed a Summons in each of the two proceedings claiming an order pursuant to the LEC Act, s 41 that each Defendant appear before the Court to answer a charge of

an offence alleged pursuant to section 125(1) of the Environmental Planning and Assessment Act 1979 that between 1 April 2000 and 4 July 2000 at 102 Elizabeth Bay Road, Elizabeth Bay within the City of South Sydney which is a property listed as a heritage item pursuant to South Sydney Local Environmental Plan 1998, the defendant did a thing forbidden to be done under the Environmental Planning and Assessment Act 1979 namely it did carry out development, begin the demolition of the roof over the garage at 102 Elizabeth Bay Road, Elizabeth Bay, for which development consent was required to be obtained pursuant to clause 23 of South Sydney Local Environmental Plan 1998 without obtaining consent therefore beforehand contrary to section 76A(1) of the Environmental Planning and Assessment Act 1979.

On the same day, Talbot J made an order in each proceeding pursuant to the LEC Act, s 41 requiring each Defendant to appear before the Court on 20 April 2001 to answer the charge made against each of them.

Each Summons claiming an order pursuant to the LEC Act, s 41was accompanied by an affidavit sworn by Alan Trong Khiet Ho on15 February 2001.

Mr Ho, who is a building assessor employed by the Council of the City of South Sydney, deposed to being familiar with premises known as No 102 Elizabeth Bay Rd, Elizabeth Bay (being premises the subject matter of the charges). He deposed to the fact of the zoning of the premises in terms of the South Sydney Local Environmental Plan, the fact that the premises were designated under that Plan as a "heritage item" and to the fact that no development consents or building approvals had been granted with respect to the premises.

After referring to his inspection of the premises in July 1999 and to ensuing correspondence passing between the Council and the owner (the second Defendant) relating to a matter unconnected with either of the charges, Mr Ho's affidavit contains the following paragraph:

7. I carried out a further inspection of the subject premises on 3 July 2000. I observed that the roof over the garage (which had been in place during my inspection on 28 July 1999) had been completely removed. During the course of my inspection, I had a conversation to the following effect with a male person whom I know to be Mr Barry Anstee, the father of the directors of Bassoak Pty Limited:

I said: Mr Anstee, my name is Alan Ho. I'm from South Sydney Council, we have met before

I said: Development consent was required for the removal of the roof over the garage but it has not been obtained.

He said: The roof was dangerous and therefore was removed. There was termite damage to the roof. It is proposed to erect a balcony in the location where the roof has been removed. A development application for the balcony will be submitted to Council.

I said: Did your children, being the owners of this property, direct you to carry out those alterations?

He said: Yes. I was put in charge of organising and overseeing the various building tradesmen.

On the return day of the s 41 orders, each Defendant appeared by Counsel and entered a plea of not guilty. The trial of both charges was on that occasion fixed for 7 June 2001.

In the period immediately following service on the Defendants of the s 41 Orders and before the trial date, the Defendant's Solicitors sought details or particulars of a matter that had been referred to in Mr Ho's affidavit, namely the Council's suspension of specific planning controls following the severe hailstorm which caused considerable damage to properties in the eastern suburbs of Sydney (and especially in the City of South Sydney) in April 1999. None of these details or particulars apparently had been provided in response to such requirements by the date of the trial. (This was a matter of default by the Prosecutor that Counsel for the Defendants claimed to be relevant to the question of costs and I shall return to consider it later).

On 5 June 2001 (ie two days before the trial date) Counsel for the Defendants informed the Prosecutor's Solicitors that the Defendants would be calling two witnesses who would give evidence that the alleged unauthorised demolition work had in fact been carried in November 1999 (and not "between April 1 and 4 July 2000" as alleged in the summonses).

On the following day, (ie 6 June 2001) affidavits sworn by Mr Anstee (the first Defendant) and Mr Hayman were served on the Prosecutor's Solicitors. These affidavits each deposed to the removal of the garage roof in "early November 1999" as a matter of urgency owing to its collapse from severe damage sustained in the April 1999 hailstorm. Additionally, the first Defendant's affidavit, while admitting the content of par 7 of Mr Ho's affidavit (earlier recited) denied that the first Defendant had said that the roof had been removed "just after Easter this year" (as deposed to by Mr Ho). Instead, the first Defendant said that he had said words to the effect that the roof had been removed "before Christmas 1999".

Later that evening, the Prosecutor's Solicitor informed the Defendants' Counsel that the Prosecutor would at the commencement of the trial the following morning seek the Court's leave to withdraw both prosecutions.

As earlier mentioned, at the commencement of the hearing of the trial, the Prosecutor's Solicitor, without objection from Defence Counsel, sought leave of the Court to withdraw the proceedings and Defence Counsel applied for a costs order in favour of each Defendant, which the Prosecutor resisted.

Thereafter, the hearing took an unusual course inasmuch as the first Defendant was called to give evidence of a telephone conversation that he had had with Mr Ho on 20 July 2000 (ie some two weeks after Mr Ho's inspection of the subject premises and conversation with the first Defendant concerning the removal of the roof to the garage). According to Mr Anstee, he asked Mr Ho whether he was aware of the Council's emergency orders suspending the Council's planning controls in consequence of damage caused to properties by the April 1999 hail storm and Mr Ho said that he was not so aware.

Mr Ho was then called in response to Mr Anstee's oral testimony. He recalled the telephone conversation (which he had initiated, because he was seeking Mr Anstee's assistance for Mr Ho to interview Mr Anstee's children, who were known by Mr Ho to be directors of the second Defendant) but he did not recall being asked by Mr Anstee about the Council's emergency orders in consequence of property damage caused by the April 1999 hailstorm. Moreover, he said that he was aware of such orders at the time he spoke with Mr Anstee.

Thereafter, the Prosecutor sought and obtained leave, without objection from the Defendants, to file further evidence concerning the aforesaid Council's emergency orders suspending relevant planning controls and to make further submissions on the disputed costs issue, with the further opportunity for Defence Counsel to reply to any such further evidence and submissions advanced by the Prosecutor.

Thereafter, the Prosecutor filed two further affidavits - one by Ms Barry, a town planner employed by the Council deposing to the status, content and application of the emergency orders made by the Council following the April 1999 hailstorm, and the other by Ms Schofield, the Council's Solicitor, deposing to a telephone conversation that she had had with the first Defendant on 5 July 2000.

Defence Counsel, in his written reply, did not object to these affidavits, even though Ms Schofield's affidavit dealt with a subject matter unrelated to the Council's emergency orders (I assume that no objection was raised because the source materials referred to in Ms Schofield's affidavit, namely her handwritten file notes of the conversation had been shown to Defence Counsel at the hearing).

In par 2 of her affidavit, Ms Schofield deposes to the following telephone conversation that she had with Mr Anstee, the first Defendant on 5 July 2000:

On 5 July 2000 I had a telephone conversation with a male person who identified himself as Mr Barry Anstee. During the course of that telephone call, I had a conversation to the following effect with Mr Anstee concerning the removal of the garage roof at 102 Elizabeth Bay Road, Elizabeth Bay:

He said: The roof over the garage was damaged by the hail storm in April last year. There was a blanket approval by the government which said that you could repair a roof including any structural repairs. We left the roof over the garage as it was after the hail storm and then, at Easter 2000, the work was done to that roof. The whole of the roof over the garage was full of white ants and we didn't put it back because so much had to come off. We are thinking of putting a plan into Council for a balcony there.

I said: It would be a good idea if you wrote to Council within the next few days setting out your position.

Ms Schofield's affidavit annexes a photocopy of her handwritten file notes of the telephone conversation.

Ms Schofield deposes in par 4 to the fact that when she received the two affidavits from the Defendants on the day before the trial date, she did not recall her telephone conversation with Mr Anstee. She said that the recollected the conversation towards the end of the hearing on the trial date only after she was reading through her papers (I assume that that occurred after Mr Anstee had given his evidence because he was not cross-examined on the matter). However, Ms Schofield deposes to showing Defence Counsel her file notes while in Court on the trial date (whether during or after the hearing).

Ms Barry's affidavit sworn 21 June 2001 essentially restates the contents of her earlier affidavit (sworn 4 June 2001) to the effect that the subject premises (with which she was familiar) were listed as a "heritage item" under the Council's local environmental plan, that the removal of the garage roof fell within the defined term "demolition" employed by that plan and was an activity that required the grant of development consent and that no such consent had been obtained. Additionally, in her earlier affidavit, Ms Barry referred to the notice given by the Council to all property owners/occupiers on the subject of "roof repairs/replacements" following damage caused by the April 1999 hailstorm.

Based upon the foregoing evidence, has the Prosecutor established any relevant disentitling conduct on the Defendants' part?

In answering this question, I should say at once that I consider that the evidence given at the hearing (including the subsequent evidence) on the issue of the Council's emergency order suspending planning controls, to be essentially irrelevant to the disputed question of costs. The Solicitor for the Prosecutor submitted that the issue which had been initially raised in the Defendants' request for particulars and was pressed by Defence Counsel calling Mr Anstee to give evidence, was in truth a "red herring". I respectfully agree for the reason that there is simply no foundation in law to support the proposition that the relevant planning controls, operating by virtue of the EP&A Act, can be suspended by executive decision. In this respect, I do not regard the Defendants' Solicitors' letters requesting particulars, to be a legitimate request for particulars. It was no part of the Prosecutor's case that there had been a temporary suspension of planning laws which was relevant (either legally or factually) to the two charges. The Defendants' request for "particulars on this matter" was in my opinion wholly misconceived. Accordingly, the fact that the Prosecutor never supplied the requested "particulars" does not, in my opinion, provide any support for the Defendants' costs applications. Not only does that result follow, but the matter goes further so as to require the exclusion from any costs order to which the Defendants may be adjudged to be entitled, costs incurred by the Defendants' Solicitors in seeking "particulars". As was stated by the Full Court of the Supreme Court in Philliponi v Leithead (1958) 76 WN (NSW) 150 at 151, a civil negligence case, "(T)he object of particulars is to enable the party asking for them to know what case he has to meet at the trial, and so to save unnecessary expense and avoid allowing parties to be taken by surprise". This decision was approved and applied to proceedings in the High Court of Australia in Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 227.

Assuming a costs order is to be made in favour of the Defendants, such order would necessarily and reasonably exclude costs incurred by the Defendants' Solicitors in seeking "particulars" because such costs were not reasonably incurred and the Defendants ought not be compensated for incurring such costs.

This leads to a related finding concerning the conduct in the litigation of the Defendants (including the conduct of their legal representatives), namely (i.) their request for particulars; and (ii.) their delay in not notifying the Prosecutor until two days before the trial date of their evidence establishing that their action in removing the roof from the subject premises had occurred prior to Christmas 1999,

in circumstances where it was apparent on the face of the s 41 orders and the respective summonses, that the proceedings had been commenced well beyond the statutory limitation period prescribed by the EP&A Act, s 127(6): see Environment Protection Authority v Bathurst City Council (1999) 89 LGERA 79 at 80.

In my judgment, these features of the Defendants' conduct in the litigation, inevitably resulted in costs being unnecessarily incurred in the proceedings. In this respect, I do not accept the Defence submission that the prosecutions were not pressed because the Prosecutor belatedly conceded the inherent weakness of the prosecution cases against each Defendant. The far more plausible explanation for the prosecutions not being proceeded with, is the Prosecutor's evaluation of the revelations in the two affidavits served on the Prosecutor the day before the trial date on behalf of the Defendants, that the Prosecution case could not establish beyond reasonable doubt that the prosecutions had been commenced within the statutory period of 12 months, that period having commenced well after the period of "prior to Christmas 1999" which the Defendants' affidavits deposed to, as being the date when the roof of the subject premises was removed: see Environment Protection Authority v Bathurst City Council.

Faced with the Defendants' affidavits, the Prosecutor had to make an informed decision as to whether its case could establish beyond reasonable doubt that the offences had been committed within the period of 12 months preceding the filing of the summonses in the proceedings on 8 March 2001.

Realistically, such proof could only be established if the Court were to wholly reject the Defendants' affidavit evidence, and to entertain no reasonable doubt that the offences had been committed within the 12 month period preceding the commencement of the proceedings. Bearing in mind that the Prosecution evidence disclosed an inspection of the subject premises by Mr Ho on 3July 2000 and a previous inspection nearly 12 months earlier, the observation made by Mr Ho in July 2000 that the garage roof was no longer in existence (having been observed 12 months earlier to have been in existence) would not, but for what Mr Anstee told him in a conversation held contemporaneously with Mr Ho's inspection, have pinpointed precisely when the roof had been removed. In these circumstances, the Prosecutor's evaluation of the Defendants' affidavit evidence served on the day preceding the trial date, could only have reasonably led to one conclusion - namely that the Prosecutor could not establish beyond reasonable doubt that the proceedings had been commenced within 12 months of the commission of the offences.

These conclusions mean that there is strictly no need for me to consider the Defence submission that the evidence of Mr Anstee's conversation with Mr Ho (which clearly was an admission by Mr Anstee) could not have been used against the second Defendant.

Defence Counsel had submitted that the evidence of Mr Anstee's conversation with Mr Ho did not qualify as a "vicarious admission" by the second Defendant in terms of the Evidence Act 1995, s 87.

In her written submissions in reply, the Prosecutor's Solicitor disavowed any reliance upon the Evidence Act, s 87 but submitted that the evidence of Mr Ho set forth in par 7 of his affidavit would have been admissible as a previous representation made by Mr Anstee to Mr Ho of an asserted fact, namely that he had been "put in charge" of the job of overseeing the building tradesmen working on the subject premises which are owned by the second Defendant.

Whereas it is not necessary, for the purpose of adjudicating upon the disputed costs question, to determine the question of the strength of the Prosecutor's case against the second Defendant, I do not accept the Defence submission that the Prosecution case was bound to fail. (In so concluding, I put aside the quite different basis for the likely failure of the prosecution on account of the Prosecutor not being able to establish beyond reasonable doubt that the proceedings were commenced within the statutory limitation period.)

In view of the foregoing, I am of the opinion that the Defendants' conduct in the litigation has caused legal costs to be unnecessarily incurred and that in consequence of that finding, the Defendants are not entitled to be compensated for such costs.

As to the remaining question whether the Defendants brought the prosecutions upon themselves, I am not able to conclude on the evidence that they did so.

In this respect, the only relevant conduct on the part of the Defendants before the proceedings were taken is Mr Anstee's conversation with Mr Ho on 3 July 2000. Mr Anstee has given evidence that he did not say that the garage roof had been removed "after Easter this year". He may, or may not, have said what Mr Ho says he said. I am unable to conclude whether the conversation went according to Mr Ho's version of it or Mr Anstee's.

But even assuming that I had been satisfied that Mr Ho's version was the true version, that would not, in my judgment, have constituted misconduct by the Defendants, which could be held to have brought the proceedings upon themselves, short of a finding, that is simply not available, that Mr Anstee had deliberately falsified the date. Not only is such an inference not available, it is not even plausibly possible - why would Mr Anstee freely admit removing the garage roof without the requisite development consent, and at the same time deliberately misstate the date of such action?

But transcending these considerations (which really involve little more than speculation) I do not think that it can be fairly or reasonably concluded, consistent with the established authority that I have earlier cited, that a person voluntarily answering questions of an investigating official (such as occurred with Mr Anstee answering Mr Ho's questions) has engaged in conduct that has "brought the proceedings upon himself".

Accordingly, I am satisfied that the Defendants have not by their conduct been shown to have brought the proceedings upon themselves.

In view of all the foregoing findings, I am of the opinion that it is fair and reasonable that the Defendants be compensated for part only of the legal costs and expenses they have incurred in the proceedings, namely costs in obtaining legal advice following service of the summonses incurred up to the entry on 20 April 2001 of pleas of not guilty, but such costs to exclude costs incurred in seeking "particulars" from the Prosecutor. At the time of entering the not guilty pleas, both Defendants must be held to have known that the proceedings charging the offences had been commenced beyond the statutory limitation period. At that point, they could, and should, have taken objection that the charges were statute barred.

Nor do I think there should be any costs order in favour of the Defendants in respect of the hearing because again, it was the Defendants who pursued the matter of the suspension of planning laws, which in my judgment for the reasons given, was a matter essentially irrelevant to the disputed costs question. Moreover, most of the submissions advanced by Defence Council in support of a costs order have failed. D. ORDERS

For all of the foregoing reasons, I make the following orders -

1. Each summons is dismissed in consequence of the Prosecutor offering no evidence.
2. The Prosecutor is to pay each Defendant's costs in the proceedings but limited to costs incurred up to the entry on 20 April 2001 of the plea of not guilty, excluding all costs incurred in the Defendants' Solicitors seeking "particulars" from the Prosecutor.

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.