The successful appellant/prosecutor in Class 6 proceedings moves for orders that the respondents pay the costs of the appeal from the Local Court.
I upheld an appeal on a question of law by the prosecutor Council against the Local Court's dismissal of proceedings for an environmental offence of cutting down and lopping trees, and remitted the matter to the Local Court to be determined according to law: Mosman Municipal Council v Spice (No 2) [2015] NSWLEC 136. I held that the Local Court erred in law in holding that the respondents could not be vicariously liable for directly authorising a contractor to clear the trees because the respondents did not have any direct intervention with the sub-contractors. I said at [21]:
It was an acceptance of the respondents' legally erroneous submission (put to the magistrate as a "critical" point) that the direct authorisation principle did not apply because the contractor's workers were sub-contractors with whom the respondents had no contract and consequently the causal link between the respondents and the work was severed. That was a pure error of law, as is common ground in the appeal. Under the direct authorisation principle, it is irrelevant whether the directly authorised contractor carried out the work through sub-contractors or otherwise.
Pursuant to s 49(4) of the Crimes (Appeal and Review) Act 2001 this Court has power to award costs in relation to such an appeal:
Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.
Section 70 referred to in s 49(4) is irrelevant in the present case.
The power is broad: Simpson v Office of Environment and Heritage [2014] NSWLEC 34, 205 LGERA 17 at [61]. In conventional civil litigation, such as in Class 4 of this Court's jurisdiction, the general rule is that costs follow the event; thus, generally the loser pays the winner's costs. It is common ground before me that s 49(4) is not a costs follow the event rule and that generally something more than winning is required to justify a costs order under s 49(4).
The successful appellant submits that there are three circumstances which in combination, but not individually, are sufficient to make it just that the respondents pay the costs of the appeal in this case.
The first circumstance is that the respondents were on notice that the appellant would seek an order for the costs of the appeal because the amended summons included a prayer for costs. This may be taken into account but I do not attach much weight to it. I observe that the amended summons was filed in June 2015 and the originating summons commencing the appeal was filed in April 2015.
The second circumstance that the appellant submits should be taken into account is that it was the respondents' legally erroneous submission that caused the Local Court to fall into an error of law: see above at [2]. The appellant refers to Queanbeyan City Council v Kovacevic [2015] NSWLEC 152 at [181] where that was a circumstance taken into account when ordering the unsuccessful respondent to pay the successful appellant's costs. I take it into account. However, that circumstance exists in almost all successful appeals by prosecutors against dismissal of proceedings.
The third circumstance that the appellant submits should be taken into account is that the written response to the institution of the appeal in a letter of 13 April 2015 from the respondents' solicitors to the appellant's solicitors was "fairly hostile" and "incendiary" and demonstrated clear knowledge of the costs jurisdiction. The letter gave notice that if the respondents were successful on the appeal they would claim indemnity costs against the appellant. The letter stated in part:
The appeal is doomed to fail. Inter alia, you will recall that the prosecutor failed to prove an essential element of the alleged offence beyond reasonable doubt viz that a development control plan, made by the Council, applied to the subject trees. The prosecutor failed to adduce any evidence of this element of alleged offence.
At the conclusion of the defendant's closing submissions, the prosecutor sought to address this fundamental defect in its case. The defendant objected, and following an exchange with the Bench, the prosecutor conceded the point and informed the Court accordingly. Once that occurred, the prosecution case was doomed to fail.
The grounds of appeal raised by the prosecutor are not arguable, but even if they are, the defendant will, if required to do so, file and serve a Notice of Contention, claiming that even if the prosecutor's grounds of appeal could be upheld the appeal must nonetheless be dismissed because of the prosecutor's failure to, in any event, prove an essential element of the alleged offence as described above.
We are somewhat surprised that the prosecutor has failed to appreciate this critical aspect of the proceedings.
We thus invite the prosecutor to immediately withdraw the appeal, which, at least upon our client filing and serving a Notice of Contention, is doomed to fail. If the appeal is withdrawn within 48 hours, our client will agree to such an appeal being discontinued with no order as to costs. Otherwise, please treat this letter as notice to the prosecutor that our client will, if successful on the appeal, claim indemnity costs against the prosecutor.
It may be accepted that the letter is fairly hostile, but "incendiary" may put it a little high (although possibly it prompted the appellant to later amend its summons to claim costs against the respondents). It is true that the conduct of a party may be taken into account on costs. However, the purpose of a cost order is not to punish but to compensate. It is not suggested that the letter increased costs. Apart from anything else, unless it increased costs it is difficult to see why it should be taken into account on costs for to do so would be a form of punishment. I do not regard the letter as a weighty consideration on costs.
The respondents submit that the following circumstances should be taken into account on costs.
First, the respondents submit that although I found in my principal judgment that the Local Court erred on a question of law alone, I also observed that the Local Court failed to address or did not fully or properly address the respondents' primary or at least alternative legal and factual arguments which might, if accepted, have defeated the charges; namely, that there had been no direct authorisation of the principal contractor Mr Jordan. In that respect I wrote at [10] of my principal judgment:
[10] On the other hand, there was evidence, including pre-trial statements by Mr Jordan, that a trier of facts might view as casting doubt on whether the respondents gave direct authority to the contractor to cut or lop the subject trees or all of them:
(a) On 9 September 2014 Mr Wall of Council wrote to Mr Spice inquiring as to who authorised the work, why Council consent was not obtained, the contact person of the individual or contractor used to prune the trees, and the reason the trees were removed. A file note of Mr Wall of 16 September 2014 recorded that Mr Jordan had telephoned and said that he did not mean to remove the two fiddlewoods as they required Council consent but intended to remove two smaller trees that were under 5 metres and exempt from tree protection; and that Mr Wall told him that if that was what occurred to put it in writing.
(b) On 16 September 2014 Mr Jordan did write to Mr Wall stating the following. His company was engaged by the respondents to remove certain trees located within 10 metres of the existing dwelling the removal was [to be] conducted under the new 10/50 legislation. On the morning tree works commenced, Ms Sorrenson asked if they were able to remove three small trees including a fiddlewood. Those trees were under five metres and therefore exempt. Adjacent to that fiddlewood stood another larger fiddlewood. After commencement of the work it was regrettably discovered that staff had removed a large portion of the wrong fiddlewood. The remainder of that tree was assessed and deemed to be a danger as it was now significantly unbalanced. Based on that danger, the tree staff were instructed by the contractor to remove the remainder of the tree. In cross-examination, Mr Jordan agreed that in writing that letter he was careful to be truthful and complete. Council relied on that letter in the statement of facts tendered on the sentencing of the contractor for the unlawful clearing of the subject trees in earlier criminal proceedings in the Local Court.
(c) The letter written by both respondents to Mr Wall on 22 September 2014 (where they said "we" engaged the contractor to do the work) also said that they did not think Council consent was required after reviewing the 10/50 vegetation clearing documentation on Council's website and engaging a surveyor to prepare a plan, which was sent to Mr Wall on 8 September and was also attached. The survey plan is marked "proposed tree clearing plan" and shows by a dotted line the 10 metre "fire zone" from the existing building as well as the boundary of the Land. The respondents submit that it also shows by dotted lines the trees to be removed, the trunks of which were within that 10 metre fire zone; and that this evidences an intention to comply with the 10/50 rule.
(d) In cross-examination, Mr Jordan said he had only been instructed to remove dead wood from the angophora.
The appellant responds that given that the Local Court dismissed the charges on the point of law found to be erroneous on the appeal, it was not necessary for the Local Court to address those matters.
I think that the highest that this consideration can be put is that on the remitter it is possible that the matters to which I referred might be regarded as sufficient to lead to a dismissal of the charges. I take that into account.
Secondly, the respondents submit that there should be taken into account that the ground on which the appellant ultimately succeeded was not identified in its amended summons nor addressed in the appellant's written submissions to this Court, and was articulated for the first time in oral submissions at the hearing. Although It was not specifically mentioned in the amended summons, it was within its general words, as I said at [7] of the principal judgment:
The main ground of appeal is broadly stated: that the magistrate failed to apply the correct test in determining whether or not the respondents were vicariously liable for the conduct of the contractor in cutting down or lopping the trees. It is broad enough to encompass the way it was put at the hearing of the appeal: that the magistrate failed to apply the correct test of direct authorisation for determining vicarious liability because he held that the direct authorisation principle is inapplicable where a contractor uses independent sub-contractors to do the authorised act rather than employees.
Nevertheless, it is correct to say that it was not addressed in the appellant's written submissions and only came to be articulated, orally, at the hearing. I take that into account, but also take into account that it did not lead to an application for an adjournment and was dealt with at the hearing by the respondents.
The third circumstance that the respondents submit should be taken into account is that the Suitors' Fund Act 1951 does not apply to Class 6 appeals. That circumstance was described as regrettable in the Queanbeyan case at [182] but in that case did not prevent a costs order being made in favour of the successful appellant prosecutor against the unsuccessful respondent. I agree that the non-application of the Suitors' Fund Act is regrettable but do not think it is a weighty consideration on costs in the circumstances of this case.
The next circumstance put forward by the respondents, as I understand it, is said to be the disparity in the financial circumstances of the appellant as a local government authority and the respondents. Even if this is potentially a relevant circumstance, which I doubt, there is no evidence as to the financial circumstances of the respondents. I therefore do not take it into account.
The final circumstance that the respondents submit should be taken into account is that they have not been convicted. That circumstance would exist in all successful appeals by a prosecutor against dismissal of proceedings. It is unnecessary to decide whether it is a circumstance which weighs against ordering costs because, after balancing all the other competing considerations to which I have referred, I conclude that it would not be just in this case to order the respondents to pay the appellant's costs.
Accordingly, the appellant's notice of motion for costs filed on 26 August 2015 in each proceeding is dismissed.
[3]
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Decision last updated: 07 December 2015