(p) was not present when the Council officers visited the site on 14 February 2006 and observed the unauthorised building works not in accordance with the development consent plans.
112 On this evidence, Mr Moline clearly did not personally carry out the unauthorised excavation or building works. The works were carried out by other persons. Excavation was observed to be done by the contractor, Mr Howard Jack. There is no evidence, however, that the critical excavation further northwards than the development consent plans required was done by Mr Jack. Nevertheless, there is no evidence of any other person being engaged to carry out or actually carrying out excavation on the site. There is no evidence as to the identity of the person or persons who carried out the unauthorised building works including pouring the concrete slab and erecting the building walls.
113 The evidence does not establish any relationship between Mr Moline and, first, Mr Jack, and secondly, the unknown person or persons who carried out the unauthorised building works, such as would make Mr Moline vicariously liable for the actions of Mr Jack, if he carried out the unauthorised excavation, or the unknown person or persons who carried out the unauthorised building works.
114 Between Mr Moline and Mr Jack, there was no relationship of employer and employee or of principal and agent. Mr Jack was an independent contractor. Generally, an accused will not be vicariously liable for the conduct of an independent contractor: Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41 at 48; Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 58-59 [277]. There are exceptions to this general principle. An accused may be vicariously liable where the accused has directly authorised the doing of the actus reus by the independent contractor: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [278], [280] and Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [104] - 263 [106]. An accused may be vicariously liable where the work done by the independent contractor is subject to the control and direction of the accused in the actual execution of the work: see Environment Protection Authority v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1 at 59 [280], 61-62 [290]. In Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd (2003) 128 LGERA 240 at 262 [102], Pearlman J described the content of the control test as follows:
"That test involves a right to direct and control a course of action, in circumstances where the right is capable of exercise and is, or is likely to be, effective. It relates to the manner in which the independent contractor undertakes the course of action, that is, the way in which the tasks are to be performed or how they are to be carried out".
115 The evidence does not establish that Mr Moline directly authorised the unauthorised excavation by Mr Jack (if he did it), or that Mr Jack was subject to the control and direction of Mr Moline in the actual execution of the excavation. Mr Moline had no enforceable contractual rights as a builder, was not in possession of the site, was not the project manager, was not the site supervisor, did not engage Mr Jack, and except for advice as to watering to suppress dust, had no contact with Mr Jack and did not give any directions to Mr Jack as to the actual execution of his work. To the contrary, the evidence establishes Mr Moline's lack of power to control and direct the work, including excavation, on the site.
116 In relation to the unknown person or persons who carried out the unauthorised building works, the evidence also does not establish any relationship whereby that person or those persons were directly authorised by Mr Moline to do the unauthorised building works or were subject to the control and direction of Mr Moline in the actual execution of the building works. Again, the evidence establishes Mr Moline's lack of power to control and direct the building works on the site.
117 In these circumstances, the prosecution has not proven beyond reasonable doubt that Mr Moline was a person who carried out development otherwise than in accordance with the consent given.
Mr Tomkinson
118 Much of the evidence that I have summarised above in relation to Mr Moline is relevant to the case against Mr Tomkinson. However, there are differences that need to be noted.
119 Mr Alan Tomkinson was one of three persons who purchased the site for the purpose of redevelopment. I have earlier described the agreements between Mr Alan Tomkinson, Mrs Ruby Tomkinson and Mr Moline.
120 Mr Tomkinson did not prepare the development application or participate in the meetings with Council officers before and after lodgement of the development application. He did, however, express frustration at the time taken by the Council to grant development consent. The primary recipient of Mr Tomkinson's expressions of frustration was Mr Moline. Mr Moline gave evidence of conversations he had had with Mr Tomkinson. The only time Mr Tomkinson was said to have communicated with the Council about the development application was by means of a letter to the general manager of the Council dated 31 October 2005. That letter bore, at the end of the letter, the typed name of "Alan Tomkinson".
121 However, there is reasonable doubt that the letter was Mr Tomkinson's letter. Mr Moline said in his affidavit evidence that Mr Tomkinson gave him "a copy of correspondence he sent to North Sydney Council dated 31 October 2005". However, on cross-examination by Senior Counsel for Mr Tomkinson, Mr Moline made a number of concessions which showed that statement to be incorrect.
122 In the conventional way, the letter contained in the top right hand corner the contact details of the sender, namely the address, telephone and facsimile numbers. The facsimile number stated was not that of Mr Tomkinson but rather was that of Mr Moline's office facsimile. Although the letter had the typed name of "Alan Tomkinson", it had beneath that name the typed word "per". Mr Moline agreed that the letter was prepared by the person who typed the letter in the full knowledge that it would not be signed by Mr Tomkinson because the word "per" appears below Mr Tomkinson's name. The copy of the letter received by facsimile by the Council had hand written "A Tomkinson" above the typed name "Alan Tomkinson" and handwritten initials "JM" next to the typed word "per". Mr Moline agreed he signed the words "A Tomkinson" and put his initials next to the "per". The letter faxed to the Council bore the header "From: Moline Associates" and Mr Moline's office facsimile number. Mr Moline agreed he faxed the letter. Mr Moline said that Mr Tomkinson came to his office, dictated the letter to Mr Moline and Mr Moline typed it in front of him in Mr Moline's office. This version of events is evidently different to that given in Mr Moline's affidavit.
123 Considering this evidence, I do not find that Mr Tomkinson wrote the letter of 31 October 2005 to the Council. In addition to the above matters raised in cross-examination which undermine Mr Moline's evidence that Mr Tomkinson sent the letter and provided a copy to Mr Moline, the contents of the letter are consistent with Mr Moline having drafted the letter. Mr Moline's evidence is that he alone prepared the development application, met with the Council officers before and after lodgement of the development application and dealt with their queries and had communications with the Council. Mr Moline was the person who arranged for Mr Paul Fitzgerald to be the PCA and to prepare the Construction Certificate, as the documentation shows. The first three paragraphs of the letter refer to these events. Only Mr Moline had direct knowledge of and had participated in these events. Mr Tomkinson was not involved. The use of the word "we" in these paragraphs is not descriptive of the true situation. In this context, the later use of "we" and "us" in reference to sub-contractors is ambiguous. It does not prove that Mr Tomkinson was involved with the sub-contractors.
124 Furthermore, it is improbable that if Mr Tomkinson wished to send a letter to the Council, he would come to Mr Moline's office, dictate it to Mr Moline, who would type it in front of him, then have Mr Moline sign the letter for Mr Tomkinson in his presence and then send it for Mr Tomkinson. Mr Tomkinson did write directly to the Council on another occasion on 2 February 2006, evidencing his willingness and capability to do so.
125 I, therefore, do not find that Mr Tomkinson wrote the letter of 31 October 2006 to the Council. The statements in that letter are not admissions by Mr Tomkinson.
126 After the development consent was issued by the Council on 1 November 2005, Mr Moline attended to the steps of obtaining the necessary insurance, appointing Mr Fitzgerald as the PCA and applying for a construction certification. Mr Moline completed the form for Appointment of PCA and Notice to Commence Work. He inserted the names of each of the owners, Mr and Mrs Tomkinson and himself, and signed for each of them. Mr Tomkinson had no involvement in these steps.
127 Mr Moline prepared the s 96 application to modify the development consent and lodged it with the Council on 7 November 2005. Mr Moline prepared the s 96 drawings and the statement that accompanied the s 96 application. Mr Moline also completed the application form and inserted the names of each of the owners, Mr and Mrs Tomkinson and himself, and again signed for each of them. Mr Moline lodged the s 96 application with the Council. Mr Moline had the meetings and conversation with Council officers after lodgement of the s 96 application. He also prepared and submitted amended s 96 plans on 30 November 2005. Mr Tomkinson was not involved in the preparation and lodgement of the s 96 application.
128 The evidence does not establish that Mr Alan Tomkinson undertook demolition, excavation and building work on the site, either personally or was vicariously liable for others who undertook such work. I will deal separately with the evidence in relation to demolition, excavation and building work.
129 In relation to demolition, the evidence of Ms Amy Young of the Council is that Mr Dean Tomkinson was on site on 28 October 2005 and claimed he was undertaking some demolition and arranging for further demolition. Ms Young said that Mr Dean Tomkinson said "I am getting prepared for demolition of the existing dwelling and I intend to remove the roof of the existing dwelling on site over the coming weekend". Later, Mr Dean Tomkinson said "I called the approved asbestos removal person that I had booked to remove the roof and have cancelled his appointment for the weekend". Mr Moline corroborated that Mr Dean Tomkinson said the last statement. Mr Moline also gave evidence that he had been told by Mr Alan Tomkinson that "the fellow removing the asbestos is a mate of Dean's". Mr Dean Tomkinson also referred to Mr Moline as "my architect/builder". The evidence does not establish that Mr Alan Tomkinson engaged the persons who undertook the demolition or gave any directions or exercised control in relation to demolition.
130 In relation to excavation, Mr Howard Jack was observed excavating at the time of the visit by Mr Huynh and Mr Perry on 24 November 2005. Mr Jack identified himself by name to Mr Huynh. However, the prosecution did not adduce any evidence of the identity of any person who engaged Mr Jack, the terms of Mr Jack's engagement, the scope of his work, any instructions or directions given to him as to his work, or who paid for Mr Jack. Mr Moline also observed excavation being performed by an excavator who he later learnt was Mr Howard Jack. Mr Moline had a conversation with Mr Jack and Mr Dean Tomkinson about watering to suppress dust whilst excavating. Mr Moline's evidence does not establish positively who did engage Mr Jack or the terms of engagement, the scope of the work, any instructions or directions given, or who paid for Mr Jack. Mr Moline said he did not engage Mr Jack.
131 Mr Moline's evidence of conversations he had with Mr Alan Tomkinson about excavation might be consistent with Mr Moline having a belief that Mr Tomkinson had engaged Mr Jack or had some relationship with Mr Jack whereby he could direct or control Mr Jack in execution of the excavation. But such a belief, if it was held, falls short of proof that Mr Tomkinson actually did engage Mr Jack or had such a relationship.
132 Mr Huynh gave evidence of a conversation he had with Mr Dean Tomkinson on 24 November 2005 in relation to over excavation. However, that conversation does not establish that Mr Alan Tomkinson carried out the over-excavation or directed others to over-excavate. First, on their face, the statements of Mr Dean Tomkinson were that he, and not Mr Alan Tomkinson, claimed responsibility for the over-excavation. Mr Dean Tomkinson was said by Mr Huynh to have said, "I am over-excavating. So. I am paying for it" and "I am sick of you idiots coming to my site and telling me what to do. This is my site and I can do what I want with it. I can over excavate if I want. It is at my own cost".
133 Secondly, the statements of Mr Dean Tomkinson cannot be characterised as those of an agent for Mr Alan Tomkinson and admissions against Mr Alan Tomkinson. The evidence does not establish that Mr Alan Tomkinson appointed Mr Dean Tomkinson as his agent. There is no evidence of any contractual relationship between them. Mr Dean Tomkinson was said by others (Mr Jack and Mr Moline) to be the supervisor at the site, but there is no evidence establishing that he was so appointed, or the scope of his work, or his authority to speak for and on behalf of any other person, including Mr Alan Tomkinson.
134 There is also evidence of conversations that Mr Huynh and Mr Moline had directly with Mr Alan Tomkinson about excavation. The prosecution relies on Mr Alan Tomkinson's statements to establish that Mr Alan Tomkinson directly authorised the over-excavation or that the excavator was subject to the control and direction of Mr Alan Tomkinson in the actual execution of the work. However, the statements are equivocal and do not so establish these facts. I will deal with the statements in chronological order.
135 Mr Moline said that on the three or four occasions he visited the site during November 2005, he observed that demolition and excavation work had begun on the existing property. He said he told Mr Alan Tomkinson he could not carry out work until the construction certificate had been issued. Mr Moline said Mr Alan Tomkinson replied, "I've been delayed too long already. Demolition and excavation are not considered construction and therefore I can carry it out without a construction certificate".
136 The prosecution has not charged the defendants for carrying out demolition and excavation without a construction certificate; rather the charge relates to the over-excavation that was carried out subsequently in November 2005. The statement does not prove Mr Alan Tomkinson directly authorised that over-excavation or controlled or directed whomever did the over-excavation.
137 The next conversation Mr Moline said he had with Mr Alan Tomkinson was after Mr Moline had marked out the setout of the external walls on 15 November 2005. Mr Moline said the conversation was as follows:
"JM said: I have marked the building out in accordance with the DA. I am trying to get Council to approve the Section 96.
AT said: I am going to excavate for the Section 96 amendment, because that's what I want for this building.
JM said: We do not have approval for the expanded area, we can only excavate in accordance with current DA.
AT said: I can't wait any longer, I've been delayed by 12 months already and I am losing money."
138 Mr Moline said he had another conversation later that week after he had visited the site and observed that the contractor had excavated beyond the external walls Mr Moline had marked out. Mr Moline said the conversation was as follows:
"JM said: We can't excavate beyond what's approved until we know the Section 96 is approved.
AT said: I need to excavate so I can get space for four cars for unit 1.
JM said: You need to wait for the approval. It looks like Mark Schofield will recommend the Section 96 for approval. But we can only excavate what's currently approved.
AT said: I'm not waiting."
139 On 24 November 2005, when Mr Huynh inspected the site and observed what he considered to be over-excavation, he had a telephone conversation with Mr Alan Tomkinson. This telephone conversation followed on from the conversation Mr Huynh had had with Mr Dean Tomkinson in which Mr Dean Tomkinson claimed responsibility for over-excavating. Mr Dean Tomkinson had then rung Mr Alan Tomkinson, spoke to him, before putting Mr Huynh on the telephone to speak to Mr Alan Tomkinson. The statements made by Mr Alan Tomkinson in the conversation that followed bears some resemblance to the earlier statements made by Mr Dean Tomkinson. Mr Hunyh said the conversation went as follows:
"Alan said: Who am I speaking to?