Pittwater Council v A1 Professional Tree Recycling Pty Ltd

It is apparent from these authorities that an applicant who has the benefit of the protection of s 347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances." 12 In Bostik (Australia) Pty Ltd v Gorgevski ( No 2) (1992) 36 FCR 439 at 447, the Full Court of the Federal Court of Australia noted:

"It is therefore clear that s 347 of the Act applies and an order for costs can only be made in favour of the respondent if the appeal was instituted vexatiously or without reasonable cause. It is to be noted that attention is directed by the section to the institution of the appeal, and not to the manner of its conduct. The appeal must have been vexatious or without reasonable cause from the outset if the respondent is to succeed. The construction of the phrase 'vexatiously or without reasonable cause' is not free from difficulty: see Geneff v Peterson (supra) (at 87-89). It is plain, however, that 'an applicant who has the benefit of the protection of s 347 will only rarely be ordered to pay the costs of a proceeding in exceptional circumstances': see Thompson v Hodder at 470. The proper approach is reflected in the statement of Gibbs J (as he then was) in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 at 473: [quoting the passage set out above].

It could not be said that the appeal in the present case was doomed to fail at the outset. It involved difficult issues,…" 13 The following approach adopted by Wilcox J in Kanan at 6 has been followed in other criminal proceedings (see Canceri, Council of Kangan, Halpin ):

"It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends upon the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being 'without reasonable cause'. But where it appears that, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause". 14 In Council of Kangan at [60], the Full Court of the Federal Court stated:

"A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the Court: R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470 per Gibbs J at 473. The section reflects a policy of protecting a party instituting proceedings from liability for costs, but that protection may be lost. Although costs will rarely be awarded under the section and exceptional circumstances are required to justify the making of such an order…a proceeding will be instituted without reasonable cause if it has no real prospects of success, or was doomed to failure…"

"We consider that, properly understood, the plaintiff's case did not raise a legal question about the nature of the proper test to be applied under s 170CJ(2) but, rather, whether the Deputy President correctly applied a test that was not truly in contention between the parties. However, the reasoning leading to this conclusion required a careful reading of the reasons for decision of the Deputy President and ascribing to the critical passages relied on by the plaintiff an interpretation or focus about which there could be a legitimate difference of opinion. Our conclusion about the approach of the Deputy President, based upon our consideration of those passages and of her reasons as a whole, does not necessarily lead to the conclusion that the plaintiff's contentions to the contrary had no real prospect of success so that the proceeding itself was brought without reasonable cause." 15 I distil the following proposition from the cases:

(a) the onus is upon the defendant to bring the case within one of the exceptions to the general rule laid down by s 257D(1) that professional costs are not to be awarded in favour of an accused person: Fosse at [16]; Halpin at [43]; Wollongong at [6];

(b) the finding of a prima facie case may not negate the application of s 257D in the circumstances of the case;

(c) the exceptions in s 257D(1)(a) and (c) are concerned with investigations, whereas the exception in (b) is concerned with the proceedings. A prosecutor's failure to interview an eye witness when it was not known what the witness' evidence might be, could satisfy the test in (a) but not the test in (c) because of the additional requirement: Wollongong at [7].

(d) as to the exception in s 257(1)(a) (that the investigation was conducted in an unreasonable or improper manner)

(i) the test is purely objective. The test is not whether the investigation fell "grossly below optimum standards": JD at [29] - [30]; Wollongong at [77]. The question whether proceedings have been initiated without reasonable cause is to be answered by reference to the quality of the evidence gathered "with an eye not only to the enquiries which had been made but also to those which should have been made": JD at [28]; Wollongong at [8];

(ii) it is unnecessary in every case for the defendant to show that an investigation conducted in a reasonable manner would have suggested that the defendant might not be guilty or that the proceedings ought not to be brought: Cliftleigh at [21];

(iii) a conclusion that the investigation was conducted in an unreasonable manner does not impugn the general competence, far less the integrity, of those responsible for the investigation: JD at [31], Wollongong at [7].

(e) as to the exception in s 257D(1)(b) (that the proceedings were initiated without reasonable cause):

(i) the failure of proceedings does not, of itself, mean that the proceedings were initiated without reasonable cause: R v Moore at 473; Wollongong at [9];

(ii) proceedings will be instituted without reasonable cause if, objectively assessed on the facts or the facts apparent at the time of initiating the proceedings, they had no real prospects of success or were doomed to failure: Council of Kangan at [60]; Kanan at 6; Wollongong at [9]. Investigation conducted in an unreasonable manner?

16 The defendant submits that the investigation into the alleged offence was conducted in an unreasonable manner, and therefore s 257D(1)(a) applies, because the prosecutor failed to reasonably investigate whether the vegetation on the land when it was cleared in May 2007 was "bushland" as defined in the Pittwater Tree Preservation Order 1996 (TPO). 17 There was evidence that the defendant had carried out the clearing. However, the prosecutor had to prove that the defendant had cleared "bushland" within the meaning of the definition in the TPO, which was as follows:

"'Bushland' means land on which there is vegetation which is either a remainder of the natural vegetation of the land or, if altered, is representative of structure and floristics of the natural vegetation."

18 The defendant submits that to reasonably investigate whether the cleared vegetation fell within either of the two limbs of the definition required expert evidence, but that the prosecutor did not rely on expert affidavit evidence until very shortly before the trial when it notified its intention to qualify the council investigator Mr Wright - who had sworn an affidavit - as an expert to provide an opinion to the effect that the first limb of the definition applied. The prosecution was conducted on the basis that the first limb of the definition applied, notwithstanding that the particulars in the summons and amended summons indicated that the cleared vegetation fell within the second limb of the definition. The defendant submits that the investigation was not reasonable in three respects: (a) Mr Wright's opinion in paragraph 12 of his affidavit read at the trial (notified very shortly before the trial) was unsupported by reference to literature or by reasoning. Paragraph 12 stated:

"In my opinion, the vegetation (except for the areas cleared on earlier occasions) which was cleared is the remainder of the natural vegetation of the land." (b) neither Mr Wright nor any other person carried out any research into the history of ownership of the land or what activity/uses were carried out; (c) Mr Wright did not examine aerial photographs taken in the 1940s, one of which (taken in 1947) was put to him in cross-examination, to ascertain whether the vegetation on the land had been altered by anthropogenic activities during modern urban settlement. Mr Wright in effect resiled from the opinion in paragraph 12 of his affidavit when that photograph was put to him. 19 In considering the defendant's submissions, two matters need to be borne in mind. First, there is a distinction between the investigation and the evidence for the trial. Section 257D(1)(a) is only concerned with the investigation, not with the evidence at trial. An investigation may not be unreasonable, yet evidence for the trial may be deficient. In the present case, Mr Wright's first affidavit, which was not read at the trial but which was tendered on this costs application, appears to have been deficient. No doubt that is why it was substituted by another affidavit of which notice was given shortly before the trial. 20 Secondly, it is necessary to keep in mind that the parties advanced competing constructions of the first limb of the definition of "bushland" in the TPO, which were critical to the outcome of the successful no case to answer submission. The correct construction was a matter of some difficulty. The prosecutor's construction was that the first limb applies if, when the alleged offence occurred, the vegetation on the land was its "natural" vegetation even if the vegetation on the land had previously been altered. An aerial photograph taken in 1947 and put to Mr Wright in cross-examination showed that vegetation on the land had been altered by clearing in 1947. I preferred the defendant's construction that the first limb of the definition was concerned with the natural vegetation that remains out of natural vegetation that has not been altered (in the context of urban planning). However, in my opinion, the prosecutor's construction was reasonably arguable and if Mr Wright's investigation provided support for the application of the first limb of the "bushland" definition on that construction, the investigation could not be said to have been conducted in an be unreasonable manner. If that is so, then in this costs context it is not to the point that I preferred the defendant's construction. In my opinion, the evidence as to that investigation does provide support to the application of the first limb of the "bushland" definition on the prosecutor's construction. Indeed, had I accepted the prosecutor's construction, then having regard to that evidence I do not think that the no case to answer submission could have succeeded. 21 The evidence discloses that when Mr Wright carried out his investigation, he was well qualified to do so. He had over 16 years experience in assessing natural vegetation and making recommendations for its restoration and re-vegetation. He had been a Natural Resources Officer for the prosecutor council since 2001 prior to which he had been a bush regenerator. He held the degree of Bachelor of Science in Natural Resource Management from Macquarie University and a Bush Regeneration Certificate from TAFE NSW and was a part-time teacher of Natural Area Restoration at TAFE North Sydney Institute. He had had about 15 years experience in assessing natural vegetation and making recommendations for its restoration and re-vegetation.

22 Further, at the time of his investigation, Mr Wright was familiar with this site because he had visited it and the adjoining property on at least three occasions in the previous 12 months in relation to other complaints of clearing. In the course of his investigation of the complaint which led to the charge, he visited the site where he observed that approximately 3,300 square metres of bushland, consisting of heath species including, but not limited to, Banksia ericifolia and Allocasuarina distyla, had been removed. His prior knowledge of the site supported by photographs that he took enabled him to say that prior to the clearing, the vegetated parts of the site were largely covered with those two species which, as is common ground, are native species. Photographs showed those species comprising vegetation which remained standing. At the time of the alleged offence, the land was already partly cleared. Thus, the investigation by a well-qualified and experienced expert and council officer established that the cleared vegetation was the remainder of natural vegetation. 23 The defendant submits, however, that even on the prosecutor's construction of the first limb of the definition, the investigation was not reasonable, because Mr Wright did not expressly say in his investigation report or affidavits that the cleared vegetation was the "natural vegetation of the land". I do not think this is accurate because in paragraph 12 of his affidavit Mr Wright expressed the opinion that the vegetation cleared on the occasion of the alleged offence, which he had earlier identified as native vegetation, was the "natural vegetation of the land". In my view, that opinion was supported by his experience and knowledge of the site including some 15 years of experience in assessing "natural vegetation", to which he referred in his affidavit. The prosecutor submits that, in any case, it was implicit in Mr Wright's account of his investigation, a submission I am inclined to accept.

24 Returning to the defendant's three specific criticisms of the investigation referred to at [18] above, in my view (a) there was reasonable support, as analysed above, for the opinion in paragraph 12 of Mr Wright's affidavit; (b) the failure to look at aerial photographs taken in the 1940s which showed land clearing was only relevant to the defendant's construction of the first limb of the definition of "bushland" and not to the prosecutor's construction of that limb, and in any event does not satisfy me that the investigation which supported the prosecutor's reasonably arguable construction was unreasonable; and (c) I am not satisfied that research into the history of the ownership of the land or what activities or uses were carried out by owners made the investigation unreasonable in the circumstances of this case.

25 It is true that in Mr Wright's cross-examination he shrank from the opinion expressed in paragraph 12 of his affidavit, but that reaction assumed that the defendant's construction of the first limb of the definition, which had been put to him to good effect in cross-examination, was correct. Although I ultimately accepted the defendant's construction, the point is that the prosecutor's construction was reasonably arguable and derives support from Mr Wright's investigation which I am not satisfied was unreasonable.

Were the proceedings initiated without reasonable cause?

26 The defendant relies upon the same circumstances referred to at [18] above in support of the contention that the proceedings were initiated without reasonable cause and, therefore, that s 257D(1)(b) applies. The prosecutor's submissions perhaps made too much of the language in Thompson that a party has the benefit of protection from costs under a provision like s 257D will only "rarely" be ordered to pay the costs of the proceedings in "exceptional circumstances": see [11] above. The exceptional circumstances are those in s 257D(1)(a)(d). Perhaps it is rare, but it is a question of fact, whether a successful defendant is able to bring the case within one of those exceptions and thereby, subject to the residual discretion of the court, obtain a costs order against the prosecutor. 27 In my opinion, it is a complete answer to the defendant's contention that, as I have found, the prosecutor's case was founded on a reasonably arguable construction of the first limb of the definition of "bushland" for which there was supporting evidence available based upon the investigation of a competent and experienced expert and council officer with first-hand knowledge of the site. On the prosecutor's case, it cannot be said that, on the facts apparent to the prosecutor at the time of initiating the proceedings, they had no real prospect of success or were doomed to failure. Deficiencies in the preparation of the original affidavit of Mr Wright, which were repaired in the second affidavit, do not detract from that conclusion. Conclusion

28 For these reasons, I make no order as to the costs of the proceedings. The exhibit may be returned.

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