Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd

Chronology

1. The Prosecutor provided a short chronology in written submissions to which I have added to include all relevant events referred to by the parties in argument.
2. On 6 March 2019 an expert report of Mr Watts aerial surveyor was finalised.
3. On 13 March 2019 an expert report of Dr Hammill Stone ecologist was finalised.
4. On 14 March 2019 the Prosecutor commenced proceedings.
5. On 16 March 2019 the statutory time bar on commencement of proceedings came into effect under s 42(4) of the Native Vegetation Act 2003 (NSW).
6. On 28 June 2019 Mr Watts' second expert report was finalised.
7. On 9 August 2021 the Defendant's notice under s 247K of the CP Act was served on the Prosecutor notifying an in globo objection to the reports of Mr Watts and Dr Hammill Stone.
8. On 21 September 2021 the Court ordered that the Defendant provide its objections to the Prosecutor by 28 March 2022 (MFI-1). This order was not complied with by the Defendant.
9. On 8 April 2022 the Prosecutor filed a notice of motion seeking leave to rely upon the additional reports of Mr Watts (dated 21 March 2022) and Dr Hammill Stone (dated 5 April 2022).
10. On 26-27 April 2022 the pre-trial hearing of the Defendant's notice of motion dated 8 April 2022 occurred.
11. On 28 April 2022 the pre-trial hearing of the Prosecutor's notice of motion dated 8 April 2022 occurred. On 29 April 2022 I refused the Prosecutor's notice of motion seeking to rely on the additional reports of Mr Watts and Dr Hammill Stone in Secretary, Department of Planning and Environment v Namoi Valley Farms Pty Ltd (No 2) [2022] NSWLEC 56 (Namoi Valley No 2).
12. On 4 May 2022 the trial proper commenced. On 4 May 2022 the Prosecutor received objections articulating grounds on which the Defendant objected to individual paragraphs in Watts' report.
13. On 12 May 2022 the Prosecutor received further objections articulating the grounds of objection including of failure to disclose the method of interpretation for identification of alleged clearing, the ground ultimately upheld in Namoi Valley No 6.
14. On 13 May 2022 the Prosecutor tendered the March 2019 and June 2019 reports of Mr Watts.
15. On 13 and 16 May 2022 the hearing of the Defendant's objections proceeded.
16. On 17 May 2022 I delivered oral reasons upholding objections to various paragraphs of Mr Watts' first report in which he opined as to clearing on subject land having occurred in the charge period by reference to aerial images he compared.
17. On 18 May 2022 I provided my written reasons in Namoi Valley No 6. The Prosecutor applied for an adjournment so that it could consider its position in light of the judgment. The adjournment was granted.
18. On 31 May 2022 the Prosecutor notified the Defendant that it proposed to withdraw the charge when the matter resumed on 6 June 2022.
19. On 2 June 2022 the Prosecutor notified the Court that it proposed to withdraw the charge when the matter resumed on 6 June 2022.
20. On 6 June 2022 the Prosecutor withdrew the charge.

Evidence

1. The affidavit of Mr McGirr sworn 10 June 2022 attests to the quantum of professional costs incurred by the Defendant in the proceedings and when these were incurred.
2. Mr McGirr was briefly cross examination by reference to a document showing an email exchange between the Prosecutor and Defendant in which, as Mr McGirr confirmed, the Prosecutor notified the Defendant of its intention to withdraw the summons on 31 May 2022 and asked for the Defendant's consent to notify the Court of that intention.

Defendant's submissions

1. The Defendant relies on s 257D(1)(a), (b), (c), and (d) of the CP Act on the basis of unreasonableness on the Prosecutor's part (not alleging improper conduct in so far as that concept appears in s 257D(1) of the CP Act).
2. Mr Watts' first report of 2019 and Dr Hammill Stone's report of 2019 were the basis for the Prosecutor's case and critical to proof of the charges laid. Their work was the core of the investigation carried out by the Prosecutor and they were the instruments of the investigation which resulted in a charge being laid. These reports were in existence before proceedings were commenced, signed off and available from 14 March 2019. The deadline for commencing proceedings expired on 6 March 2019. While Mr Watts is not an employee of the Prosecutor he is an instrument of investigation whose techniques and methodology were inadequate and this should have been obvious on the face of the reports to the lawyers for the Prosecutor before proceedings were commenced. Self-evidently the reports were inadequate.
3. That the Prosecutor sought to rely on an additional report of Mr Watts which was partly the subject of Namoi Valley No 2 less than three weeks before the scheduled commencement of the trial reinforces the view that Mr Watts' reports were deficient. The matter became beyond doubt when the application to rely on the additional report was refused on 29 April 2022 in Namoi Valley No 2.
4. The circumstances of the late commencement of the prosecution close to the statutory time bar date, the recent receipt before that date of Mr Watts' report which must have been reviewed by the Prosecutor's lawyers, give rise to an inference that the Prosecutor commenced proceedings cognisant of the risk of the inadequacy of Mr Watts' reports. Objectively considered what was done was unreasonable. These same circumstances establish that s 257D(1) paragraphs (a)-(d) all apply.
5. Section 257D(1)(a) applies as the investigation into the alleged offence was conducted in an unreasonable manner.
6. Section 257D(1)(b) applies as the proceedings were initiated without reasonable cause. This is for the same reasons as previously identified regarding the role and consideration of Mr Watts' reports.
7. Section 257D(1)(c) also applies in that the Prosecutor unreasonably failed to investigate (or investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested for any other reason that the proceedings should not have been brought. The other reason in this case was that the Prosecutor was aware or ought reasonably to have been aware that Mr Watts' reports were deficient in the sense recognised in Namoi Valley No 6.
8. Section 257D(1)(d) also applies because there were exceptional circumstances relating to the conduct of the proceedings by the Prosecutor making it just and reasonable to award professional costs. The exceptional circumstances were the same circumstances as previously mentioned. The Prosecutor should have withdrawn the summons at the latest by 29 April 2022 when Namoi Valley No 2 was decided. Instead the Prosecutor prolonged the already expensive and lengthy proceedings by commencing the trial.
9. Replying to the Prosecutor's submission that unreasonableness in s 257D(1) is to be equated with unreasonableness in the administrative law sense (see below in [39]), the Defendant submitted that there is no basis for such an equation. The bar for unreasonableness in s 257D(1) is lower than in judicial review proceedings, being whether, objectively viewed, in all the circumstances, the conduct in the particular case was unreasonable.
10. In response to the Prosecutor's submissions summarised below in [46], the Defendant identified in the transcript of 26 April 2022 references where the Defendant submitted the Prosecutor expressed an awareness that the Defendant was objecting to the whole of the original reports of Mr Watts and Dr Hammill Stone on the grounds identified in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 (Makita).

Prosecutor's submissions

1. No basis for any of the circumstances in s 257D(1) applying has been made out by the Defendant.
2. In relation to the claim that the Prosecutor acted unreasonably generally, the Prosecutor submitted that it acted entirely reasonably in considering and relying on Mr Watts' expert reports. Unreasonableness in the context of 257D(1) is to be equated with unreasonableness in the administrative law sense. A decision can be legally unreasonable when it lacks an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10], [59] and [82].
3. In relation to s 257D(1)(a), the Defendant does not even clear the first hurdle because it does not explain how the shortcoming of Mr Watts' reports meant that the "investigation" into the alleged offence was conducted in an unreasonable manner. There is an important distinction between the investigation and the preparation of evidence for a hearing. A failure to interview a critical eyewitness may constitute an investigation conducted in an unreasonable manner: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) (2009) 165 LGERA 6; [2009] NSWLEC 21 (A1 Professional) at [15c]. An investigation may not be unreasonable, yet evidence for the trial may be deficient: A1 Professional at [19]. Mr Watts' reports were not part of the investigation of the offence. Mr Watts' reports were prepared to collect evidence for the proceedings. Alternatively, if Mr Watts' writing of reports was part of an investigation it would be a misuse of language to describe his omission to disclose his method of interpretation of alleged clearing as part of the investigation.
4. Proceedings will be instituted without reasonable cause within the meaning of s 257D(1)(b) 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: A1 Professional at [15]. The test turns upon the facts as known to the Prosecutor, not the evidence: A1 Professional at [13]. The Prosecutor relied on the propositions identified by me at [88]-[89] in Natural Resources Access Regulator v Harris; Natural Resources Access Regulator v Timmins (No 2) [2021] NSWLEC 18 (Timmins No 2).
5. The Defendant did not identify any facts which suggested the proceedings were instituted without reasonable cause.
6. Contrary to the Defendant's submission that the Prosecutor recognised the deficiencies in Mr Watts' first report as evidenced by its application for leave to rely on an additional report, the Prosecutor relied on Mr Watts' additional report to respond to criticisms of the first Watts' report by the Defendant's expert Dr Robertson ecologist, as recorded by the Court in Namoi Valley No 2 at [11], [21]. The additional report the subject of Namoi No 2 was not brought forward for the purpose of 'curing' deficiencies in the Mr Watts' 2019 reports and did not address those deficiencies. The additional report was not allowed because it would cause irredeemable prejudice to the Defendant.
7. Section 257D(1)(c) is not made out. Even if the shortcomings of Mr Watts' reports were part of the investigation (which is denied for the same reasons as above in relation to s 257D(1)(a)), a shortcoming in the investigation does not amount to a failure to investigate a relevant matter. The Defendant does not and has no basis to suggest that there was a relevant matter which suggested it might not be guilty or that for any other reason the proceedings should not have been brought.
8. Section 257D(1)(d) does not apply. This paragraph requires that the Defendant establish something about the conduct of the proceedings which is an exceptional circumstance, meaning out of the ordinary or unusual, other than some matter arising in relation to paragraphs (a)-(c), to make it just and reasonable for it to obtain costs: Fosse v Director of Public Prosecutions [1999] NSWSC 367 (Fosse) at [30] (Wood CJ at CL in an application for judicial review of a magistrate's decision not to award costs under the equivalent provision in s 81 of the Justices Act 1902 (NSW), considered the expression "other exceptional circumstances"). Plainly this could not be satisfied if the circumstances establish one of the other three limbs of the subsection. In any case, this paragraph relates to the conduct of proceedings not something which occurred or did not occur before the proceedings were initiated, and Mr Watts' first report was written on 6 March 2019 before the commencement of proceedings. There is no other exceptional circumstance relating to the conduct of proceedings and even if there were, the Court would not be satisfied that it was just and reasonable to award costs.
9. The Prosecutor also emphasised the very late notification on 12 May 2022 by the Defendant of the objection which was heard on 13 May 2022 and ultimately successful in Namoi Valley No 6, delivered on 17 May 2022.

Consideration

1. The Court must be satisfied that one or more of the subsections in s 257D(1) are met in order for an order for costs in favour of the Defendant to be made with the onus of achieving that satisfaction resting with the Defendant. The Defendant has incurred costs and their quantum is not material at this stage given that s 257G of the CP Act allows the Court to order costs as agreed or assessed. Subsections (1)(a) and (c) concern the investigation of an offence. Subsection (1)(b) concerns the initiation of proceedings and their conduct. Subsection (1)(d) concerns exceptional circumstances (not otherwise covered by earlier subsections).
2. By way of general overview of how events transpired based on the chronology set out above in [7]-[25] the Defendant notified its detailed objections to Mr Watts' reports late, well after the timeframe specified in the September 2021 Court order made for preparation of the matter for trial. The Defendant had the benefit of the Court nevertheless allowing its objections to be heard. The objection to the whole report on the basis of absence of demonstration of methodology was notified only the day before the hearing on that matter being on 12 May 2022. Similar objections to a number of paragraphs were specified in the Defendant's list of objections dated 4 May 2021. The Prosecutor was not on notice earlier of any fundamental flaws in Mr Watts' reports. While the Defendant relied on a transcript reference identifying that the Prosecutor had knowledge of the Defendant's Makita objection broadly on 26 April 2022 that was not the focus of the notice of motion then being heard and in any case the transcript references provided read in context only show awareness by the Prosecutor of a Makita objection in relation to Dr Hammill Stone's report, not Mr Watts'. The notice of motion dated 8 April the subject of Namoi Valley No 2 did not demonstrate that the Prosecutor was on notice of the deficiencies in Mr Watts' reports the subject of Namoi Valley No 6. It was not apparent that the prosecution should have been withdrawn at the date of the judgment in Namoi Valley No 2, contrary to the Defendant's submissions to that effect.
3. The inadequacies in Mr Watts' reports are not self-evident contrary to the Defendant's submissions. That the Defendant's objection was upheld in key respects in Namoi Valley No 6 does not render a matter self-evident.
4. While the Prosecutor made submissions summarised above in [39] to the effect that unreasonableness should or can be assessed by reference to the standard applicable in a judicial review context, such an approach does not appear warranted in these circumstances and adds unnecessary complexity to the task. No authority was cited in the criminal context suggesting such an approach is warranted. The reasonableness of the Prosecutor's actions can be assessed objectively by the Court mindful of the ethical and legal obligations of a prosecutor commencing and conducting criminal proceedings.
5. In relation to s 257D(1)(a), for the reasons given by the Prosecutor Mr Watts' report preparation was not part of the investigation of whether an offence had been committed and their preparation was not therefore 'caught' by that section. His reports were prepared for the purpose of giving evidence for the commencement of proceedings, a different phase to an investigation into whether an offence has been conducted. The Defendant has not otherwise identified any failure in the investigation undertaken, as would be required by the principles I identified in Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) (2014) 202 LGERA 203; [2014] NSWLEC 70 (Bulga Coal Management No 2) and has not satisfied the Court in that regard for the purposes of subs (1)(a).
6. Having relied solely on Mr Watts' reports not being admitted, the Defendant has failed to establish that s 257D(1)(c) ought to apply in that there was no demonstrated failure to investigate or investigate properly any matter the Prosecutor ought to have been aware of which suggested the Defendant might not be guilty inter alia. The Prosecutor's submission above in [44] is accepted.
7. In relation to s 257D(1)(b), in Timmins No 2 I found as follows at [88]-[89]: 88. Proceedings will be instituted without reasonable cause if, objectively assessed on 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 Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275; [2006] FCAFC 199 at [60]; Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257; [1992] FCA 539 (Kanan) at 264. The failure of proceedings does not mean that the proceedings were initiated without reasonable cause: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) (2009) 165 LGERA 6; [2009] NSWLEC 21 (A1 Professional Tree Recycling) at [10], [14] and [15(a)]; R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) 140 CLR 470; [1978] HCA 51 at 473: Wollongong City Council v Ensile Pty Ltd (No 9) [2008] NSWLEC 248 at [9]. 89. If success depends upon the resolution in the Prosecutor's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the Prosecutor's own version of the facts, the proceeding must clearly fail, it may properly be said that the proceeding lacks reasonable cause: Canceri v Taylor (1994) 123 ALR 667 at 676 where Moore J adopted the approach of Wilcox J in Kanan at 264.
8. The allegation made is that the initiation of proceedings was without reasonable cause because the Defendant later successfully objected to important parts of the Prosecutor's evidence. That a prosecution is discontinued is not a basis for an award of costs under s (1)(b): Timmins No 2 at [88]; A1 Professional at [10]. The circumstance relied on without more does not justify the application of subs (1)(b).
9. No definition of exceptional is provided in s 257D(1)(d) and its ordinary meaning can be applied of 'unusual', 'extraordinary': Port Macquarie-Hastings Council v Lawlor Services Pty Ltd (No 7) (2008) 139 LGERA 87; [2008] NSWLEC 75 at [75]; Bulga Coal Management No 2 at [76]. The Prosecutor correctly submits relying on Fosse that a circumstance enlivening subs (a)-(c) cannot enliven subs (d) given the words "other exceptional circumstances". In any case as the Prosecutor identified, subs (1)(d) refers to the conduct of proceedings. There is nothing exceptional about the circumstances of the conduct of proceedings by the Prosecutor in relation to reliance on Mr Watts' reports. I have already found that any failure in these was not self-evident. That Mr Watts' reports were central to the Prosecutor's case does not make these circumstances exceptional and the conduct of proceedings by the Prosecutor does not warrant the application of ss (1)(d).

Orders

1. The Defendant's notice of motion dated 10 June 2022 is dismissed.

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