" 11. The answer to the first question turned upon the construction of the relevant consent and in particular a notation on plans which were incorporated within the consent. Either a question of law or a mixed question of law and fact.
12. The second question turned upon the construction of communications and contractual matter to determine what was the role of the variety of 'players' wherein the Court ultimately determined that notwithstanding the terms of a communication from the Defendants to the builder, that there was no instruction from them which was an instruction to demolish or which was causally linked to the construction. Again, truly either a question of law or a mixed question of law and fact ."
The judgment summarised
12 During the demolition of buildings and parts of buildings after site works commenced on or about 12 November 2005, concerns arose and gradually increased regarding cracking in the walls of terrace 4. The evidence showed that Haymes consulted Mr Waddell of Coffeys Geotechnical Engineers and they jointly recommended the relevant demolition "as a matter of urgency" in mid December 2005. Both had consistently advocated more extensive demolition of terrace 4 prior to that date. By 16 December 2005 Sarkis was of the view that the remaining walls of terrace 4 constituted a danger.
13 On 16 December 2005 and again on 16 January 2006, Haymes instructed JPS to demolish, and the builder consulted him throughout the relevant demolition works, which commenced on 23 January and were completed by 21 March 2006. The Defendants' case was that they had no involvement in this aspect of the project at that stage; they merely, on 20 January 2006, "re-forwarded an earlier instruction issued by Mr Haymes to JPS".
14 The defence makes much of the Council's failure to prosecute Haymes or cross-examine him on some matters, and its failure to question the independent expert, Mr MacLeod, during his oral evidence, on the meaning of the notation on the plans. Counsel made submissions at the trial on the extension of the Jones v Dunkel principles to such situations. In coming to my decision I did not rely on any Jones v Dunkel inference. I accepted MacLeod as an eminent expert, but, compared to Haymes and Coffeys, he had no first-hand knowledge of terrace 4, and relied only on photographs.
15 I was not satisfied on the first question posed - and certainly not beyond reasonable doubt - that, upon the proper construction of the consent as a whole, the partial demolition of terrace 4 was in breach of it. I then turned my attention (commencing at [34]) to the second question, concerning the defendants' role in the instruction to demolish.
16 On 12 January 2006, Sarkis had emailed to Daly a request for his approval, as a contract variation, of the demolition works Haymes had instructed be done, and Daly declined the request. Neither email implicated Daly or Kincorp in the giving of the relevant instruction. Mr Daly and Kincorp neither had a role in, nor could have applied any expertise to, those works. They consistently claimed that they were engaged as a project manager, to act on behalf of a sick and absent client (the principal of Bourke), rather than as a construction supervisor. The responsibility to comply with the terms of the development consent lay upon the builder under the terms of its contract with the owner, entered on 6 October 2005.
17 On 19 January 2006 Sarkis asked Daly/Kincorp for "an instruction to demolish … along with an approval for this variation". On 20 January, Kincorp confirmed the Haymes-recommended level of demolition, and I was satisfied that it was Haymes, and not Daly or Kincorp, who oversaw, and gave all necessary instructions for, that job over the next few weeks.
18 Sarkis regarded Kincorp/Daly, rather than Haymes, as his principal, and Haymes had no direct contractual relationship with him as the builder. Haymes testified that he did not regard it as his "responsibility" to instruct the builder "directly". Yet Sarkis and JPS relied heavily on Haymes and acted readily on his instructions, before and after Daly's email of 20 January. JPS organised the demolition and carried it out with Haymes' on-going supervision.
19 In the end, I accepted Mr Daly's sworn evidence that he did not intend to do, nor do, any more than confirm the extent of works as a contract variation in accordance with the site instruction he understood Haymes had given to Sarkis. Kincorp/Daly merely confirmed that JPS/Sarkis should act on the Haymes instruction(s). The practical preparations for the demolition had commenced on 11 January 2006, with work to commence, ultimately, on 23 January 2006. None of the preparations sprang from any communication from Daly or Kincorp. No causal connection between that communication of 20 January and the commencement of works on 23 January 2006 was established.
20 Again I was not satisfied beyond reasonable doubt that either or both of the defendants authored or gave a relevant instruction.
21 Accordingly, the summonses and charges against both defendants were dismissed on 31 July 2008.
22 For completeness I should draw attention to what I wrote at [9] of my judgment:
"Mr Sarkis gave evidence for the Prosecutor in these proceedings, but the defendants objected to the reading of an affidavit made by him in his company's proceedings. Reference was made before me to possible factual inaccuracies in the material placed before Lloyd J by way of agreed facts, so I have not had regard to His Honour's judgment in dealing with the present charges. In the result His Honour imposed a fine of $5,000 on JPS. See Woollahra Municipal Council v JPS Development & Construction Pty Limited [2007] NSWLEC 595. Mr Sarkis had every opportunity to give the Court in this matter his version of relevant events (see, especially, T4.02.08, pp47-57)."
23 It is clearly not appropriate in this costs application to go behind Lloyd J's decision in any way simply because it would appear that Sarkis may have agreed in his proceedings to "facts" to which Mr Daly would not subscribe in these proceedings. I accepted Mr Sarkis's evidence before me on its merits.
Evidence on the issue of costs
24 Solicitors for each side have now put relevant correspondence before the court as annexures to their respective affidavits. The chronology of events is important, and can be gleaned by a perusal of those letters and the court's records.
(a) Relevant history
25 The charges were initiated on 7 September 2006, and their case management (along with the JPS/Sarkis matters) commenced. In these matters, particulars were sought and provided, the expert MacLeod was brought into the matter, and directions were given on several occasions.
26 On 23 February 2007, JPS and Sarkis entered pleas of guilty and their cases were set down for a sentence hearing on 14 June 2007. On 13 April 2007, Kincorp and Daly entered pleas of not guilty, and the parties were directed to pursue agreement on a Statement of Facts.
27 Lloyd J disposed of the JPS matter on 14 June 2007, and the Sarkis matter did not proceed.
28 On 22 June 2007, Jagot J fixed the Kincorp/Daly matters for hearing on 22-26 October 2007. Negotiations continued, unsuccessfully, on draft statements of facts in those matters. The prosecutor complained in July/August that the defence was not responding to correspondence and not being reasonable in its approach to possible agreement on facts, to simplify the proceedings and keep costs and delay down.
29 On 28 September 2007, the prosecutor proposed what it described as a "minor amendment" to the particulars of charge. (The original and amended particular 1 are contrasted in [5] above). Pain J allowed the amendment, with costs "thrown away" awarded in favour of the defendants, on 18 October 2007. Her Honour also vacated the October hearing dates because of Haymes' absence overseas.
30 By 26 October 2007 the serious and detailed disagreements between the parties on a possible Statement of Facts had crystallised. Lengthy letters were exchanged, dated 11 and 26 October 2007 respectively, pointing to some 27 disputes on the facts.
31 On 9 November 2007, Jagot J fixed the hearing for 25-26 February 2008, and on 30 November 2007 Preston ChJ changed the hearing dates to 4-7 February 2008.
(b) "Settlement" negotiations
32 Some "settlement" negotiations had commenced on 9 October 2007, when the prosecutor suggested the Kincorp/Daly matters be disposed of along the lines by which the JPS/Sarkis prosecutions had been concluded - Kincorp would plead guilty, and pay any fine and the prosecutor's costs, and the Council would withdraw the Daly matter.
33 On 22 October 2007, the defence asked the prosecutor to withdraw both matters and pay only the costs which Pain J had ordered. Over the next few days other options were canvassed, but the original offer of 9 October remained unacceptable to the defendants - if the hearing were to proceed with a plea of guilty by either defendant, the defence wanted there to be only a nominal fine imposed (with prosecutor's support) and no order as to costs, given that most of Council's costs, in the defence's view, "should" have been covered by the costs order made by Lloyd J against JPS.
34 No agreement was reached on either the final disposition of the matters, nor on a Statement of Facts.
(c) The trial
35 The hearing ran for five days, 4-8 February 2008, on a defended basis, but without the benefit of an agreed Statement of Facts.
36 Emma Adams is incorrect when she says (in her affidavit 2 October 2008, par 37) that "two separate statement (sic) of facts [were] relied on at the hearing". I have now found in the court file two draft statements of facts, a defence version filed in court on 18 October 2007 and a prosecution version formally filed on 22 January 2008, but neither was placed in evidence before me at the substantive hearing, and I have had no regard to those filed documents, then or now. There was, however, as I noted in my judgment (at [10]), a fair amount of common ground at the hearing, which served to keep time and costs down.
37 Final submissions were made on 17 March 2008, and judgment in favour of the defendants was handed down on 31 July 2008.
(d) Alternative conclusions reached by the parties
38 The prosecutor blames the defence for the delay in getting the matter on for hearing, and for adding to costs, by (1) not agreeing on a Statement of Facts, (2) not obeying the court's directions, (3) not appearing before the List Judge on several occasions, and (4) not answering several items of correspondence.
39 On the other hand, the defendants point to (1) the prosecutor's decision to amend its particulars 12 months after the charges were brought, and just prior to the then expected hearing dates, which had been set three months earlier, and (2) its "unreasonable" refusal to incorporate into its proposed Statement of Facts virtually all the matters raised by the defence as the available evidence unfolded.
The statutory provisions
40 In criminal matters the normal civil rule that "costs follow the event" does not apply. In prosecutions (especially environmental prosecutions) the unsuccessful defendant is quite often ordered to pay the prosecutor's costs, but, where the defendant is successful, one has to look at and apply the statutory regime applicable to the court or to the specific area of law involved.
41 It is common ground that, in accordance with s41 of the Land and Environment Court Act 1974, the relevant statutory provisions regarding the making of an order for costs in favour of the defendants in this matter are ss 257C, 257D, and (perhaps) 257E of the Criminal Procedure Act 1986, the relevant parts of which provide:
" 257C When professional costs may be awarded to accused person
(1) A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
…
(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in proceedings under this Part pay professional costs if:
(a) the accused person is discharged as to the offence the subject of the proceedings…