Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change

Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change - [2010] NSWCCA 292 - NSWCCA 2010 case summary — Zoe

[25]

The argument before the trial judge 13 The appellants' application before the trial judge in respect of para (c) was based principally upon an argument that the prosecution had failed to establish the edaphic or soil component of the description of the Swamp Sclerophyll EEC in the Scientific Committee's Final Determination was an essential component of the description of the Swamp Sclerophyll EEC. 14 In support of its argument, the appellants relied upon the decision of Preston CJ LEC in Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 in which his Honour held, at [64], that a definitional description such as that which was in issue here: "…has three components that are linked: an edaphic (soil) component ('silts, muds or humic loams' ), a topographical component ('depressions, flats, drainage lines, backswamps, lagoons and lakes') and a locational component ('associated with coastal floodplains'). The soils are 'in' the topographical features identified, which are in turn 'associated' with the coastal floodplain, as defined by the Scientific Committee …" (emphasis added) 15 At [106], Preston CJ LEC stated that the Scientific Committee's description of Swamp Sclerophyll Forest had the same three components. Insofar as the edaphic component was concerned, it comprised "humic clay loams and sandy loams". 16 The evidence of Dr Hazelton was directed to establishing that the edaphic or soil component of the definition had not been satisfied. The respondent's conduct in withdrawing the prosecution was witness to its acceptance that it had failed to prove this essential component. 17 Dr Hazelton's evidence remained relevant on the costs application, as it formed the evidentiary underpinning of the appellants' submission that the prosecutor had unreasonably failed to investigate or to investigate properly a relevant matter of which it was aware or ought reasonably to have been aware for the purposes s 257D(1)(c): that is that soil of the land upon which the trees were cut down was not humic or alluvial and that the topography was not a floodplain or have drainage lines associated with a coastal floodplain.

[33]

The floodplain vegetation within the study area at Dulguigan is associated with humic clay loans on waterlogged and periodically inundated alluvial flats and drainage lines associated with the coastal floodplain, as described in the NSW Scientific Committee's determination." (emphasis added) 26 Ms McKinley gave oral evidence and was extensively cross-examined on her report. One lengthy portion of the cross-examination appears to have been directed at undermining Ms McKinley's conclusion set out at [24] above. It is not necessary to consider that cross-examination for the purpose of the appeal. 27 Ms McKinley was then cross-examined as to the "soils component" information in Table 1 in her report. Table 1 was entitled "Swamp Sclerophyll Forest EEC characteristics and whether or not swamp sclerophyll forest at Sites 1A and 1B meet criteria". The table set out, by way of heading, the criteria from the Final Determination, with a final column heading, "Fits criteria". Under a criteria heading, "Soils" in respect of the "Site/Area", the edaphic or soils component of the Scientific Committee's definition of Swamp Sclerophyll Forest EEC (see bolded portion in [25] above), was reproduced as follows: "Associated with humic clay loams and sandy loams, on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains." 28 The descriptions of "soil" in the study area locations, described as "Swamp sclerophyll forest at site 1A" and "Site 1B" respectively, were each as follows: "Yes, soils are humic clay loams. Waterlogged soils are present and the area is periodically inundated. Area is on a drainage line associated with a coastal floodplain (Section 4)." 29 In her cross-examination, Ms McKinley agreed there were three components to the "Soils" criteria referred to in the table: "an edaphic component", a "topographic component" and a "locational component". She also agreed that the edaphic component was encompassed by the words in the table, "humic clay loams and sandy loams", the phrase "waterlogged or periodically inundated alluvial flats and drainage lines" was a reference to the topological component and the phrase "coastal flood plains" was a reference to the locational component. Ms McKinley agreed that the three components were linked. She also agreed that when she prepared her report, she "had not closely examined the soils". Ms McKinley did not agree, however, that her failure to closely examine the soils was a significant limitation. She explained: "I thought that because I'm not a soil expert I could look at the soils and because I'm familiar with the area I am familiar with alluvial soils but I'm not a soil expert and so that's why I put that that was a limitation. I picked up the soil and crumbled the soil and looked at it and I knew that it wasn't sand and I knew that it was alluvial soils." 30 The limitation referred to in this answer was the limitation stated in section 3 of her report (see [21] above). The cross-examination continued: "Q. When you say you know can I suggest to you that you assumed? A. I assumed, yes, you're correct. I assumed it was alluvial soils because it looked like alluvial soils and it made sense that it was alluvial soils and I've also looked at the soils on the areas above it.

[34]

Q. But you couldn't be confident that it was alluvial soil in fact, could you, based on what you did and didn't do? A. I am confident that it was alluvial soils but, as I said, I'm not a soil expert. I'm confident in myself but I would have ideally have liked a soil expert to have confirmed that but I also did look at the mapping for the area." 31 Ms McKinley accepted that the definition in the Scientific Committee's determination required that Swamp Sclerophyll Forest was associated with humic clay loams and sandy loams. She said that the soils at sites 1A and 1B had some organic matter in the topsoil. She agreed that humic soils were soils comprising moderate to highly decomposed or partly decomposed organic material, but not only in the topsoil. Ms McKinley was not able to state whether the soil at sites 1A and 1B had humic matter below the topsoil, as she had not dug any soil pits on the site. 32 It was suggested to her that as she was unsure whether the soil was humic, she could not be confident that the sites were the endangered ecological community described by the Scientific Committee. She responded to this as follows: "I am actually confident that it is on alluvial soils but it's true that's only based on my general knowledge of alluvial soils in the area and I understand that it may have been mapped as being on bedrock. It's a green that's the bedrock (sic)…" (emphasis added) 33 The bolded portion of this answer requires some explanation. The cross-examiner was attempting to undermine Ms McKinley's reliance on Troedson et al, New South Wales Coastal Quaternary Geology - Digital Dataset, NSW Department of Primary Industries, Mineral Resources for Comprehensive Coastal Assessment (the Troedson Mapping), which she had referenced in her report and which is referred to more fully below. Counsel had shown the mapping to her and suggested that the subject land was in the area shaded green. Ms McKinley did not identify the mapping as that of Troedson. Rather, she said: "A. I don't actually remember it but if this is Troedson's then I have looked at it.

[43]

Reasons of the trial judge 45 The trial judge, at [3], observed that: "The report of Dr Hazelton meant that the cleared vegetation the subject of the prosecution was not on soil identified as one of the criteria for EEC." 46 In the succeeding paragraphs of her judgment, her Honour referred to the report of Ms McKinley which had identified the soil where the vegetation was cleared as being alluvial and the evidence of Mr Goodwin that the cleared vegetation was Swamp Sclerophyll Forest EEC. Her Honour also referred to the relevant statutory provisions, the authorities and the respective arguments of the parties. 47 Her Honour, at [30], stated, relevantly for the purposes of s 257D(1)(c), that the test for determining the reasonableness of an investigation was an objective one involving a consideration of what enquiries were made and should have been made by the prosecutor's investigation. 48 The appellants had argued before the trial judge that as Ms McKinley had stated in her report that there were limitations in her methodology as to soil type, the respondent should have investigated the soil type for the Swamp Sclerophyll Forest EEC more diligently and that more investigation should have been done. The trial judge rejected this submission, finding, at [31], that Ms McKinley had addressed all the elements of the offence, including the soil type. 49 Her Honour acknowledged the limitation in the methodology identified by Ms McKinley, but noted that she had undertaken investigations such as physically examining the soil and had referred to relevant mapping, namely, the Troedson Mapping. Her Honour referred to Ms McKinley's oral evidence that she was aware of the Morand Mapping. It is apparent however, from her Honour's reasons, that she accepted Ms McKinley's evidence, or at least accepted as reasonable, Ms McKinley's opinion that the Morand Mapping, upon which the appellants particularly relied, was on too broad a scale to be definitive. Her Honour then concluded that she was not satisfied the respondent had unreasonably failed to investigate any relevant matter of which it was aware to suggest the appellants were not guilty under s 118A(2). 50 A factor in her Honour's reasoning was her acceptance, at [32], of the respondent's submission that the matters outlined in considerable detail in Gales Holdings were "not required to be replicated in every other matter considering the type of EEC the subject of these proceedings" before her. Her Honour stated that the discussion in Gales Holdings "no doubt reflected evidence obtained in relation to a site that had been extensively studied". Her Honour considered, however, that the nature of a Class 1 merit appeal was quite different from a criminal prosecution.

[44]

Issue on the appeal 51 The appellants stated that the sole issue on the appeal was whether the trial judge erred in not being satisfied pursuant to s 257D(1)(c) that the prosecutor: "… unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty of that, for any other reason, the proceedings should not have been brought." (see s 257D(1)(c)) 52 It is convenient first to deal with the second of their two challenges to her Honour's decision. 53 The appellants do not contend that her Honour identified the wrong legal principle. However, they contended that in accordance with the principles in House v R [1936] HCA 40; 55 CLR 499 at 504-505, her Honour's decision fell outside the bounds of a sound discretionary ruling. In this regard, two particular challenges were made. First, the appellants submitted that her Honour constructively failed to exercise jurisdiction with respect to the costs application, by failing to give genuine, proper and realistic consideration to relevant matters. Secondly, they submitted that her Honour reached a decision in the determination of those applications which was manifestly unreasonable having regard to the evidence. 54 The first of these arguments draws upon the following statement of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 at [129] 428: "Reference was made in argument to the 'sufficiency' of the primary judge's reasons. When it is said that a judge did not give 'sufficient' reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer 'to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision'. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction." (references omitted) 55 The second is a reliance on what might be described as the default position in House v R, where, although no identifiable error is discernable, nonetheless appellate intervention is warranted. As Dixon, Evatt and McTiernan JJ said in that case: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 56 Before dealing with the submissions of the appellants, it is appropriate to refer to her Honour's comment at [32] of her reasons, set out at [50] above. I am not entirely sure what this remark is directed to. If her Honour intended to say that in a criminal prosecution, matters do not have to be proved in the same way that they need to be proved in a Class 1 merit appeal that would be an error. A criminal prosecution involves an allegation that an offence has been committed. Each ingredient or element of the offence must be proved beyond a reasonable doubt. I very much doubt that was her Honour's meaning. If, by the phrase, "matters outlined in … Gales Holdings", her Honour was referring to the analysis by Preston CJ LEC of the components of the Scientific Committee definition, then each of those matters had to be proved by the prosecution on the criminal standard. It may be and more likely was that her Honour was referring to the range of expert evidence that was called in Gales Holdings and the statement should be understood in that context. Whatever her Honour's intended meaning, the approach to the present appeal must be set against the background that this was a criminal prosecution, in which the prosecution bears the burden of proof of each element of the offence on the criminal standard. 57 However, the costs application before her Honour did not require satisfaction on the criminal standard. Rather, her Honour had to be satisfied on the civil standard of the matters referred to in s 257D(1)(c). In this regard, the appellants bore the onus of establishing that they were entitled to a costs order. This required that the appellants establish:

[51]

Was the investigation unreasonable? 64 Both aspects of the appellants' contention that the investigation was unreasonable are answered, in large part by a consideration of the evidence about the mapping. 65 Although Ms McKinley conceded the Troedson Mapping did not show the land as being on quaternary alluvium and also made the concession that the land was not on a floodplain, the Final Determination did not require that the ecological community be on a floodplain. Rather, the Final Determination required that the community be "on waterlogged or periodically inundated alluvial flats and drainage lines associated with coastal floodplains". Ms McKinley's evidence was that the site was on a drainage line associated with a floodplain, although most of the site was a draining depression which, she said, was associated with the drainage line. By contrast, Dr Hazelton's evidence was that the landform did not have drainage lines associated with a coastal floodplain. 66 Neither the Morand Mapping nor the Troedson Mapping was in evidence to enable the trial judge to form an opinion as to whether either mapping established whether the topographical features in the definition were satisfied, or at least put the respondent on notice that more intensive or extensive investigations than those carried out by Ms McKinley were required. This is of particular importance in determining whether the appellants have discharged their onus of establishing the factors referred to s 257D(1)(c) . 67 Ms McKinley's 'concession' in relation to the Troedson Mapping was heavily qualified. First, she did not identify the mapping she was shown as being the Troedson Mapping. Secondly, she said that the land may have been mapped as being on bedrock. This evidence does not establish that land was on bedrock and accordingly that the soils could not be humic. Given that the 'concession' Ms McKinley made was qualified in the way I have described and as neither mapping was in evidence, much of the strength that otherwise might have been in the appellants' argument is dissipated. 68 In my opinion, there was no error in her Honour not being satisfied that the respondent unreasonably failed to investigate any relevant matter of which it was aware which suggested that the appellants were not guilty of the offence with which each had been charged. The onus of satisfying the court of an entitlement to costs under s 257C is on the defendant to the prosecution: see Fosse v DPP [1999] NSWSC 367. That onus extends to satisfying the Court of the component parts of s 257D upon which a discretionary determination is based. 69 In this case, the appellants were required to establish that the respondent had unreasonably failed to investigate, or to investigate properly, something of which it was aware or ought to have been aware which suggested that the appellants might not be guilty, or that for any other reason the proceedings ought not to have been brought. As the trial judge found, the respondent investigated the soil type. Accordingly, the question for consideration was whether the respondent unreasonably failed to investigate properly the composition of the soils which it knew or ought to have known were not alluvial soils. 70 Ms McKinley professed confidence that the soil type was alluvial, based upon her knowledge of the area, an examination of the surface soil and upon the Troedson Mapping. The appellants did not contend that the Troedson Mapping was not relevant, was wrong, or did not relate to this particular area or did not identify the soil as being alluvial. Nor was there any evidence to suggest that Ms McKinley's reliance on the Troedson Mapping was misplaced. 71 The cross-examination of Ms McKinley as to the mapping was limited to her reasons for not using the Morand Mapping, it being suggested to her that it showed the subject land was erosional, in which case the soil would not be alluvial. However, Ms McKinley provided an acceptable reason for not using the Morand Mapping. In addition, both Ms McKinley and Mr Goodwin relied significantly on the predomination of Sclerophyll flora, as well as their local knowledge of soils in the area, supported in Ms McKinley's case by an examination of the topsoil, which appeared to her, on her physical examination, to be humic. 72 The respondent's investigations can be criticised. However, before an entitlement to the exercise of the Court's discretion is enlivened, the appellants have to satisfy the Court that there was an unreasonable failure by the respondent to investigate properly something of which it ought reasonably to have been aware. At trial, the appellants did not challenge Ms McKinley's expertise to give evidence as to the component aspects of the description of the Sclerophyll Swamp EEC in the Final Determination. Rather, the challenge was whether her evidence was sufficient to establish, on the criminal standard, certain elements of the offence. The cross-examination did not establish that the prosecutor was aware or should have been aware that the soils were not humic. As I have said, Ms McKinley stood steadfast in her belief that the soils were humic. Mr Goodwin's evidence supported that evidence. 73 There is no doubt that Dr Hazelton's report undermined Ms McKinley's evidence in respect of the edaphic or soil aspects of the land. However, s 257D(1)(c) does not provide an entitlement to costs merely because one expert trumps another, or where one aspect of the evidence is found to be unmaintainable either because of contrary evidence given by the defence, or because the prosecution evidence has been effectively undermined in cross-examination. 74 In my opinion, this case rose no higher than as I have just indicated, namely, that Dr Hazelton's evidence was sufficient to undermine the respondent's case in respect of soil. Once Dr Hazelton's evidence was tendered, it was reasonable for the respondent to accept it would not be able to prove beyond a reasonable doubt the soil component of the description in the Final Determination. That of itself, however, does not prove that the respondent unreasonably failed to investigate a matter of which it was aware or ought to have been aware. 75 The appellant also relied upon Dr Hazelton's evidence in respect of the topographical component of the Final Determination. I have already referred to the absence of either mapping in the evidence. The relevant expertise of each of Dr Hazelton and Ms McKinley does not resolve the question whether the respondent unreasonably failed to investigate or investigate properly the topographical component of the matter and, in my opinion, there was no such evidence to establish that matter. 76 There was another aspect of her Honour's reasoning to which reference should be made before concluding on this aspect of the appeal. Her Honour accepted, at least in arguendo, that had the appellants served Dr Hazelton's report prior to the commencement of the trial, there might then have been an unreasonable failure to investigate, given the contents of Dr Hazelton's reports. However, the appellants did not proceed down that route. The consequence for present purposes is that meant that there was no evidence sufficient to satisfy her Honour of the elements of s 257D(1)(c).

[52]

Failure to properly engage with the evidence 77 The appellants also submitted that it was not sufficient for the trial judge to merely refer to Ms McKinley's evidence. Rather, her Honour was required to give a proper, genuine and realistic consideration to relevant matters in order to properly exercise her jurisdiction: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at 292 per Gummow J; Weal v Bathurst City Council & Anor [2000] NSWCA 88; (2000) 111 LGERA 181 per Giles JA at [80] 201 (Priestley JA agreeing). 78 The appellants contended that her Honour's reasoning at [31] disclosed a failure to give such proper, genuine and realistic consideration to the nature and degree of the deficiencies in the prosecution case. In this regard, they submitted that her Honour's reference to Ms McKinley's investigations, such as "physically examining the soil" without taking into account the manifest deficiencies in that examination, demonstrated a failure to engage properly with the deficiencies in the investigation of the edaphic and topographical components of the land and failure to properly assess the significance of that deficiency having regard to the terms of s 257D(1)(c). The appellants' further submission that her Honour failed to give full and proper consideration to Dr Hazelton's evidence is really the counterpoise of this submission. 79 In my opinion, this ground has not been made out. In her reasons, her Honour recorded the submissions of both the appellants and the respondent in which each drew her Honour's attention to the factual matters relied upon in support of or in defence of the application for costs. In my opinion, the reasons were adequate to demonstrate that her Honour gave proper genuine and realistic consideration to the evidence. It is also to be remembered that her Honour had heard and read the evidence shortly before the costs application was made. There was no need, therefore, to set it out in detail in dealing with the costs application. 80 It follows, in my opinion, that the appeal should be dismissed. 81 KIRBY and JOHNSON JJ: We agree with the reasons of Beazley JA and her Honour's conclusion that the appeal ought be dismissed. We wish to add some further comments. 82 It is apparent that the appellants did not serve upon the prosecutor the report of Dr Hazelton dated 9 June 2009 until after the prosecution had closed its case on 18 June 2009. It appears that the procedural regime applicable to that hearing did not require prior service of the expert report upon the prosecution. 83 It is noteworthy that recent amendments, concerning case management and pretrial orders in serious criminal indictable proceedings, permit the Supreme or District Courts to order, amongst other things, the pretrial service on the prosecution of a report of any expert witness whom the accused person intends to call to give expert evidence at a trial: ss.143(f); 146(2) Criminal Procedure Act 1986. We do not suggest that these provisions applied to these proceedings. Rather, their enactment reflects the fact that the traditional approach, where an accused person could hold back such evidence until the defence case was underway, no longer reflects the law in this State with respect to trials for the most serious crimes. 84 During the hearing of these appeals, counsel for the appellants acknowledged the forensic advantages of this approach to his clients (page 16.10, 5 July 2010): "KIRBY J: You didn't serve your report. Presumably you wanted the advantage of surprise and there were forensic advantages.

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Judgment (56 paragraphs)

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