Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors..

[2022] NSWLEC 89

Land and Environment Court

New South Wales

Medium Neutral Citation:

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 3) [2022] NSWLEC 89

Hearing dates:

27 May 2022

Date of orders:

26 July 2022

Decision date:

26 July 2022

Jurisdiction:

Class 5

Before:

Moore J

Decision:

See orders at [76]

Catchwords:

COSTS - Prosecutor charges each Defendants with a common charge in March 2019 - each Defendant successfully challenged the charge against it on the basis of it being duplicitous - Prosecutor granted leave to seek to amend to cure duplicity - several attempts by the Prosecutor to reparticularise the charge to cure duplicity - final version of the Prosecutor’s amended charge held to be (i) unknown to the law and (ii) patently duplicitous and (iii) latently duplicitous and (iv) constituted a fresh charge, being one sought to be relied upon after the expiry of the relevant statutory time limit - the charges against each Defendant were dismissed - each Defendant applied for costs of the entire proceedings pursuant to s 257D(1)(d) of the Criminal Procedure Act 1986 - Defendants proposed that there were exceptional circumstances arising from the conduct of the proceedings by the Prosecutor that warranted each Defendant having a costs order made in its favour for the entirety of the proceedings - exceptional circumstances established concerning the whole of the proceedings - appropriate to award costs to each Defendant for the entirety of the proceedings - costs order made

COSTS - costs of costs proceedings usually follow the event - each costs’ Applicant entirely successful in the costs order sought - appropriate to make costs order in each Defendant's favour for the costs of the costs proceedings

Legislation Cited:

Criminal Procedure Act 1986, ss 257B, 257C, 257D and 257G

Cases Cited:

Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552

Commonwealth DPP v Barnes [2010] NSWSC 1040

Cumberland Council v Tony Younan; Cumberland Council v RonneyOueik; Cumberland Council v; H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67

Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204

Fosse v DPP & Anor [1999] NSWSC 367

Latoudis v Casey (1990) 170 CLR 534

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors [2020] NSWLEC 52

Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34

Category:

Costs

Parties:

Matter No 87062 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Goodman Property Services (Aust) Pty Ltd (Defendant)

Matter No 87038 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (Defendant)

Representation:

Counsel:
Mr P Singleton, barrister (Prosecutor)
Mr C Ireland, barrister (Defendants)

Solicitors:
Matter No 87062 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Holman Webb Lawyers (Defendant)

Matter No 87038 of 2019
Secretary, Department of Planning and Environment (Prosecutor)
Colin Biggers & Paisley (Defendant)

File Number(s):

87062 and 87038 of 2019

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The first substantive proceedings

The 10 June 2020 mention

The Prosecutor’s applications to amend

The July 2020 mention

The Prosecutor’s September 2020 application to amend

The Defendants’ December Notices of Motion

The second substantive proceedings

The costs applications

Representation

The costs hearing

The evidence for the costs hearing

The relevant statutory provisions

Relevant potential marker dates

The submissions for the Defendants

The submissions for the Prosecutor

The reply submissions for the Defendants

Consideration of the Defendants’ costs claim

Costs of the Defendants’ costs applications

Orders

Judgment

Introduction

1. On 19 March 2019, the Secretary of the Department of Planning, Industry and Environment (the Prosecutor) laid charges against Goodman Property Services (Aust) Pty Ltd (Goodman) and Burton Contractors Pty Ltd (Burton) (collectively, the Defendants - unless separate identification is necessary). The charges alleged breaches of the terms of Condition E25 of a development consent for civil engineering works undertaken by Burton, a civil engineering contractor, on behalf of Goodman (as the owner of the site) on a large proposed industrial estate in Western Sydney. The charges laid against each of the Defendants were in identical terms.

2. The terms of Condition E25 of Goodman's development consent were:

Erosion and Sediment Control

E25. During construction works, the Applicant shall implement and maintain best practice erosion and sediment control measures on-site, in accordance with the relevant requirements in the latest version of Managing Urban Stormwater: Soils and Construction Guideline (Landcom).

3. The term “Blue Book” is the name which is commonly used in the construction industry to identify the document referenced in the condition.

The first substantive proceedings

4. By separate Notices of Motion filed in August 2019, each of the Defendants challenged the charges on the basis that they were duplicitous.

5. The Defendants’ Notices of Motion were heard on 6 February 2020.

6. On 13 May 2020, I held that the Defendants’ challenges to the charges were well‑founded, but I concluded that the Prosecutor should be granted the opportunity to seek to rely on amended charges, should it elect to do so (Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors [2020] NSWLEC 52 - my first decision).

7. The conclusions which I had reached, concerning the iteration of the charges against the Defendants addressed in this decision, were set out, at [81] to [85], in the following terms:

81   The conclusion that I have reached is that the elements that arise from Mr Macleod's evidence (as specified in the Prosecutor’s particulars and as summarised in the Prosecutor’s Statement of Facts reproduced at [36]) are sufficiently geographically separated and unrelated, as well as being of a range of separated causes/different outcomes, to cause the present single charges to suffer from patent duplicity.

82   In reaching this conclusion, it is unnecessary for me to dissect Mr Macleod's evidence in the fashion undertaken by counsel for Goodman and for Burton to determine how many separate breaches are so sought to be aggregated. It is merely sufficient that I conclude that what is here involved are multiple separate occurrences of what might be alleged to be breaches of Condition E25 that have impermissibly been sought to be rolled up in the single charge pressed against each of Goodman and Burton.

83   I now turn to the question of latent duplicity. This element of the complaints by Goodman and Burton can be dealt with concisely.

84   It is to be observed that, at [42] of the Prosecutor’s Statement of Facts (earlier set out at [36]), where the Prosecutor listed a range of alleged breaches of Condition E25, that list is not described as being exhaustive but is described as merely comprising examples of the alleged offending conduct. Similarly, in the second paragraph of Mr Macleod's 21 December 2018 report under 4.2 Assessment (Exhibit A, Tab 3, page 28), the report makes it clear (lines 453 and 454) that the list set out, commencing at line 455, is of numerous areas of non-compliance with the Blue Book, including (but not limited to) (with the list of alleged breaches following therefrom).

85   This makes it clear that there are further, unpleaded breaches of the Blue Book said to be capable of being alleged against each of Goodman and Burton. The failure to “close the list” of alleged breaches in this fashion also means that the charges here laid are latently duplicitous.

8. I set the matter down for mention on 10 June 2020 for the purpose of charting the future course of the proceedings.

The 10 June 2020 mention

9. At the 10 June 2020 mention, relevantly, I made the following directions:

1   The Prosecutor is to file and serve a motion seeking leave to amend the summons and supporting affidavit in each matter by the close of business on 23 June 2020;

2   The matter is listed before Moore J at 9.00 am on 15 July 2020 to determine the outcome of the motion referred to in Direction 1; or if the motion has not been filed and served pursuant to Direction 1, to determine the consequences thereof.

The Prosecutor’s applications to amend

10. On 23 June 2020, the Prosecutor filed Notices of Motion in each of the proceedings seeking leave to rely upon an Amended Summons as against each of Goodman and Burton. These Notices of Motion were listed for hearing on 9 and 10 December 2020. The proposed amended charges were, relevantly, in identical terms.

The July 2020 mention

11. At a mention before me on 15 July 2020, counsel for each of Goodman and Burton indicated that they wished to resist leave being given to the Prosecutor to amend in the fashion sought in the Notices of Motion filed on 23 June 2020. These challenges were said to be on the basis that the proposed reformulated charges were also duplicitous. A hearing for the purposes of addressing these challenges was set down for 9 and 10 December 2020.

The Prosecutor’s September 2020 application to amend

12. On 14 September 2020, the Prosecutor filed further Notices of Motion in each matter seeking to substitute alternative draft Summonses to replace those that had been filed on 23 June 2020. Goodman and Burton indicated that they did not oppose the substitution of these new draft Summonses as forming the basis of matters to be dealt with when I considered the Prosecutor’s Notices of Motion on 9 and 10 December 2020.

13. All parties proposed that I deal with this substitution in chambers in order to ensure that there was sufficient time to address the new draft Summonses in their written submissions prior to the scheduled December 2020 hearings. As a consequence, on 1 October 2020, I made consent orders effecting, in the Notices of Motion in each of the Goodman and Burton proceedings, the substitution of the two proposed replacement Amended Summonses.

14. The proposed further revised amended charges remained, relevantly, in identical terms.

The Defendants’ December 2020 Notices of Motion

15. On 3 December 2020, Notices of Motion were filed on behalf of Goodman and Burton. These Notices of Motion sought that the proceedings be dismissed and that the Prosecutor pay the costs of the relevant Defendant.

The second substantive proceedings

16. A second substantive hearing took place on 9 and 10 December 2020. During the course of this second substantive hearing, the Prosecutor made a further attempt to reformulate replacement charges in a fashion seeking to address and cure defects in them identified by the advocates for each of the Defendants.

17. On 10 December 2020, the Prosecutor was granted leave to rely on Further Amended Summonses - these Further Amended Summonses being those addressed (and rejected) by my second decision. The relevant procedural path arising on these two days was described in my second decision, at [13] to [19], as follows:

13   For the purposes of understanding that which arose to give rise to the Prosecutor filing a further, subordinate Notice of Motion seeking leave to amend the proposed Summonses, thus leaving the 23 June 2020 Notices of Motion seeking to rely on Amended Summonses significantly different to those which were originally proposed in June 2020, it is necessary to recount a little of what occurred during the hearing on 9 December 2020.

14   The critical element of understanding what follows is the fact that the charges in the proposed June 2020 Summonses sought to particularise the “Manner Of Breach”, in each instance, in some more than 130 lines of text said to describe how Goodman and Burton had breached Condition E25.

15   One critical element of this descriptive material addressed matters relating to a sediment retention basin, with a second element being infrastructure appurtenant to and servicing such a basin. It is to be noted, here, that for the purposes of what was said to be involved by the Prosecutor, only one basin potentially provided a basis for the charge.

16   However, during the course of the early stage of the hearing, I drew the attention of the Prosecutor to the fact that, in the first paragraph in the particulars under the heading “Manner of Breach”, the word utilised was “basins”, a term in the plural. The Prosecutor sought and was granted leave to rectify this plural designation by turning the term to “basin” in the singular in the two instances where the plural appeared. Leave for this purpose was granted.

17   The next procedural step arose when, in response to the written submissions that had been filed for Goodman and Burton, the Prosecutor sought leave to amend the particulars in a further (more significant) respect by removing three separate references that had sought to incorporate the concept of infrastructure appurtenant to the sediment retention basin so as to confine the charge simply to the basin itself. I declined to grant leave for this amendment.

18   After an adjournment to permit the Prosecutor to consider its position, it was indicated that the Prosecutor wished to consider filing further Notices of Motion to seek leave to amend the proposed Amended Summonses provided for in the June 2020 Notices of Motion. The proceedings were adjourned to permit the Prosecutor to pursue further this course.

19   Later that day, the Prosecutor filed further Notices of Motion (one in each proceedings) seeking leave to amend the proposed Summonses that had been filed on 23 June 2020. In doing so, the Prosecutor no longer sought to rely on any of the alternative Summonses that had been sought to be supported in earlier Notices of Motion. The Notices of Motion seeking to amend the June 2020 Summonses now proposed a concise statement of the Manner of Breach, being a statement, in each instance, in the following terms:

(e)   Manner of breach

The Defendant failed in respect of the catchment area labelled “1” in the diagram in the Schedule hereto to satisfy the requirement imposed by clause 6.1.3 (d) (ii) of Managing Urban Stormwater: Soils and Construction [Landcom, 4th ed., March 2004] (‘the Blue Book’).

18. The hearing on 10 December 2020 was taken up with the challenges by each of the Defendants to this now final formulation of the charge upon which the Prosecutor relied.

19. The Defendants challenged these reformulated charges on a range of bases - all of which I found were established. These are set out in [148] of my second decision reproduced below (Secretary, Department of Planning and Environment v Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors (No 2) [2021] NSWLEC 34 - my second decision).

20. On 16 April 2021, I dismissed the charges against each of the Defendants and reserved the question of costs. The various attempts by the Prosecutor to reformulate a charge known to the law to permit such a charge against each of the Defendants to proceed to trial were set out in my second decision. The conclusions which I reached in my second decision were set out, at [147] to [150], in the following terms:

147   I have concluded that the complaints made on behalf of Goodman and Burton concerning the charge for which the Prosecutor now seeks leave to rely upon by the substitution of the proposed Amended Summons via the vehicle of the now Amended Notice of Motion of 22 June 2020 in each proceedings are to be sustained. Each of the complaints which I have upheld individually warrant refusal of leave to rely upon the proposed Amended Summons. The necessary consequence which arises from the establishment of any one of these complaints is that the Prosecutor’s Amended Notices of Motion of 22 June 2020 must be rejected. The further necessary consequence of this is that the proceedings against each of Goodman and Burton are to be dismissed (this being the outcome sought by each of Goodman and Burton in their Notices of Motion filed on 3 December 2020).

148   In summary, I have found that the proposed Amended Summons is defective because:

●   The proposed charge as now articulated is one unknown to the law; and

●   The proposed charge as now articulated is patently duplicitous; and

●   The proposed charge as now articulated is latently duplicitous; and

●   The proposed charge as now articulated is to be characterised, correctly, as a fresh charge, thus being a charge impermissibly sought to be relied upon after the expiry of the relevant statutory time limit; and

●   The charge is impermissibly uncertain.

149   As these proceedings had their genesis in my decision of May 2020, holding that the original charges against each of Goodman and Burton as set out in the Summonses filed by the Prosecutor on 22 June 2018 were defective, it is to be noted that, through these present proceedings, the Prosecutor had sought to propose (and then abandoned) various iterations of a possible repleaded charge to be levelled against each of Goodman and Burton. Under those circumstances, I am satisfied that there is no proper basis upon which it could be considered appropriate to provide the Prosecutor with any further opportunity to seek to revise or amend to cure the defects I have now found to have been established by the Defendants.

150   In summary, I have determined that each of the five complaints levelled against the proposed Amended Summons is well‑founded. Each of these separately warrants refusal of permitting the Prosecutor being granted leave to rely on the proposed Amended Summons for Goodman or Burton. The Prosecutor has had more than ample opportunity to formulate a valid charge to be laid against each Defendant. It therefore follows that the dismissal of the proceedings against each of Goodman and Burton is appropriate.

The costs applications

21. On 21 December 2021, Burton filed a Notice of Motion seeking that the Prosecutor be ordered to pay Burton’s costs of the entire proceedings. On 13 January 2022, Goodman also filed a Notice of Motion seeking that the Prosecutor be ordered to pay Goodman’s costs of the entire proceedings.

22. Although Burton's Notice of Motion cited s 257G of Criminal Procedure Act 1986 (the Criminal Procedure Act) as the basis for its costs application and Goodman’s motion cited s 257D of that Act as the basis for its application, nothing turns on this. The effect of the orders sought in the Notices of Motion were identical.

Representation

23. For the purposes of the costs hearing, the Defendants were jointly represented by Mr C Ireland, barrister. Mr Ireland had represented Burton at the hearings leading to my first and second decisions. The Prosecutor was represented by Mr P Singleton, barrister. Mr Singleton had represented the Prosecutor at the two earlier hearings. Both advocates provided helpful written submissions for the purposes of the costs hearing. Indeed, the transcript of the costs hearing is, itself, more than double the combined length of the written submissions of the advocates!

The costs hearing

24. The costs hearing took place on 27 May 2022. The hearing was in court, being conducted in accordance with the then applicable COVID‑19 policy of the Court.

The evidence for the costs hearing

25. Goodman's costs application was supported by an affidavit from Ms Funda Karabacak, a solicitor employed by that company's legal representatives. Burton's application was similarly supported by an affidavit from Mr Todd Neal, a solicitor employed by that company's legal representative.

25. Two folders of documents had been filed as Joint Tender Bundles on behalf of Goodman and Burton. However, only one of them was tendered (becoming Exhibit A) on the motions (as the second volume, I was advised, contained settlement correspondence between the parties which was not relied upon by Goodman and Burton). Similarly, some material which had been proposed to be included in Exhibit A was excluded as not being relevant in the circumstances of the costs applications as pressed at the hearing.

26. To the extent that the affidavits relied upon for the purposes of the costs’ motions, and the documentary evidence actually tendered, address questions of costs’ negotiations between the parties, they are irrelevant for present purposes. Similarly, to the extent that either Mr Ireland’s or the Prosecutor’s written submissions addressed, in passing, those matters, they are similarly irrelevant.

The relevant statutory provisions

28. For the purposes of this costs’ consideration, four provisions of the Criminal Procedure Act are engaged. The first of them, s 257B, sets the circumstances when costs may be awarded in favour of a prosecutor. The provision is in the following terms:

257B   When costs may be awarded to prosecutor

A court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies or, if the conviction or order directs, as may be determined under section 257G, if—

(a)   the court convicts the accused person of an offence, or

(b) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence.

29. As is made clear, no costs order can be made in favour of the Prosecutor unless the Defendants (here, relevantly) had been convicted. As can be seen from my earlier setting out of the results of the two decisions I have already given in these proceedings, such circumstances do not arise and I am precluded from considering making any costs order in favour of the Prosecutor.

30. The second relevant provision is s 257C which sets out the limited circumstances in which a defendant can seek a costs order against a prosecutor when that prosecutor is a public official. This provision is in the following terms:

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.

(2) The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.

(3)   …

31. The circumstances when such an order might be made are further circumscribed by s 257D. Here, the Defendants rely solely upon s 257D(1)(d) as the basis for the costs application that they have made. How this provision is to be understood, in a general statutory interpretation sense, and whether, properly understood, the facts and circumstances arising in these proceedings satisfy the test in the element relied upon by the Defendants are the primary matters requiring determination in these proceedings.

32. The relevant element of this provision is in the following terms:

257D   Limit on award of professional costs against a prosecutor acting in a public capacity

(1)   Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following—

(a)   …,

(b)   …,

(c)   …,

(d)   that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2)   ....

(3)   ….

33. The final provision is s 257G. This provision is in the following terms:

257G   Calculation of costs

The professional or other costs payable by a prosecutor or accused person in accordance with an order directing that the amount of costs is to be determined under this section are to be determined—

(a)   by agreement between the prosecutor and accused person, or

(b) if no such agreement can be reached, in accordance with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) (with or without modifications prescribed by the regulations).

34. As there is no agreement between the Prosecutor and the Defendants as to any costs’ outcome in the Defendants’ favour, the necessary consequence is that, as I have concluded that costs orders are appropriate to be made in the Defendants’ favour, it must be made on the basis that costs are to be as agreed or assessed.

Relevant potential marker dates

35. The costs applications for each Defendant seek that the Prosecutor pay costs from the commencement of the proceeding. Whilst the Prosecutor opposes the making of any costs order in favour of either of the Defendants, the Prosecutor proposes, on a contingent basis, that if any costs order is to be made, it should only be operative from 9 December 2020. This date is advanced as appropriate, on a contingent basis, as this is the date when the Prosecutor made its final (and fatally flawed) attempt to formulate a charge that was not defective to be relied upon against each Defendant.

36. During the course of this costs hearing, I indicated to the Prosecutor and Mr Ireland that it seemed to me there were, if I was minded to consider making a costs order against the Prosecutor, a total of five potential marker dates to which I would need to give consideration.

37. Two of those dates were those outlined above - being the competing dates nominated by the Defendants and by the Prosecutor.

38. However, given the conclusion I have reached (for the reasons later explained), it is not necessary to explore these possibilities.

The submissions for the Defendants

39. Mr Ireland’s written submissions in support of the costs applications were commendably brief. The bulk of them were devoted to setting out the history of the proceedings and the two decisions of a substantive nature which I had already delivered. The history does not require further description.

40. To the extent that, relevantly, they dealt with the merits of the costs’ claims, the submissions addressed this, at paragraphs 21 to 24, in the following terms:

21.   The commencement and maintenance of these criminal proceedings based on a legally deficient pleading and the subsequent repeated presentation of further legally deficient pleadings when the Prosecutor was directed to make an election to remove the duplicity also amounts to exceptional circumstances in the conduct of the proceedings by the Prosecutor that makes it just and reasonable for costs to be awarded in the Defendants’ favour.

22. It has been held that a prosecutor maintaining summonses including offences not known to the law amounts to “exceptional circumstances” within the meaning of s257D(1)(d), making it just and reasonable to award costs in those proceedings: Cumberland Council v Tony Younan; Cumberland Council v Rodney Oueik; Cumberland Council v H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67 (at [87]). This decision applies directly to each of the present proceedings having regard to the findings of the Honourable Court in the second judgment as summarised at paragraphs 16 and 17 of these submissions above: see also Karabacak Affidavit, paragraphs 11 and 17.

23. The word “exceptional” as used in s257D(1)(d) is not defined in the Act and has been held to be of broad ambit, carrying in this context its ordinary meaning of something out of the ordinary or unusual: Environment Protection Authority v Bulga Coal Management (No 2) (2014) 202 LGERA 203; [2014] NSWLEC 70 at [30] (Pain J), Port Macquarie-Hastings Council v Lawlor Services Pty Limited (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87 at [75]. The commencement of criminal proceedings on the basis of legally deficient pleadings, and a serial failure to correct this jurisdictional defect which took place in the present case is such an exceptional circumstance that renders it just and reasonable for a costs order to be made.

24.   Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125 at [99] (Leeming JA) explained that a finding of duplicity could provide the basis for a costs order in favour of a defendant at the conclusion of the proceedings.

41. A considerable portion of Mr Ireland’s oral submissions also involved taking me through the process of the two hearings and my decisions resulting from them. It is unnecessary for me to summarise those matters as they are adequately earlier addressed.

42. The first substantive element of Mr Ireland’s oral submissions warranting noting concerned the decision of Robson J in Cumberland Council v Tony Younan; Cumberland Council v Ronney Oueik; Cumberland Council v H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67 (Younan) (a case cited by Mr Ireland and the Prosecutor in their written submissions). The relevant element of Mr Ireland’s oral submissions concerning this case was (Transcript 27 May 2022, page 11, lines 15 to 29):

… there was an offence pleaded that was not known to the law that amounted to in that case exceptional circumstances making a costs order unjust and reasonable. And there was a statutory problem there in terms of the introduction of the particular statutory provision relied upon. So the facts are different to that extent, but conceptually, of course, we have that particular element here in these proceedings, namely, ultimately a charge unknown to the law pleaded by the prosecutor in its final notice of motion. Now, the prosecutor says that justifies an order from 9 December 2020 only. However, that’s disputed, because your Honour would need to have a look at the whole course of conduct of the prosecutor throughout the proceedings from 19 March 2019 onwards. And it is that whole course of conduct is if anything the more important part and justification the more important demonstration of the far going unreasonableness of the prosecutor’s conduct in these proceedings and also the justification for the making of a costs order.

43. Mr Ireland submitted that, for the purposes of considering whether s 257D(1)(d) was satisfied, the entirety of the Prosecutor’s conduct from the commencement of the proceedings required to be considered. He proposed that, when so viewed, the Prosecutor’s unreasonable conduct was exceptional and, thus, warranting costs being awarded to his clients.

44. He proposed that, if I was satisfied in the fashion he advanced, it would be appropriate to award his clients the entirety of their costs (citing Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552).

45. Mr Ireland noted the principle that awarding costs was compensatory and not punitive came from the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534 (Latoudis v Casey), a decision arising in criminal proceedings.

46. Mr Ireland summarised the overall position of the costs’ Applicants concerning the entirety of the substantive process in the following terms (Transcript 27 May 2022, page 15, lines 4 to 17):

I say here that the conduct of the Prosecutor in these proceedings, starting with a duplicitous charge of an exceptionally high order and fundamental defectiveness, that was the subject of your Honour’s first judgment, not just the bog standard duplicitous charge when there’s one or two alternatives, we’re dealing with tens of alternative permutations, many many many aspects of the particularisation of the charge incorporated into the charge that led to duplicity due to the way it was particularised in the Prosecutor’s facts that were put forward.

The conduct of its proceedings from that point culminating with what happened and is reflected in the second judgment in the intervening period, all the way along, is nothing other than out of the ordinary, or highly unusual, in the defendants’ submissions in this context, such as justifying the epithet exceptional.

47. Mr Ireland then turned to respond, in anticipation, to elements of the Prosecutor’s written submissions. He responded to the Prosecutor’s submission concerning the eujusdem generis principle of construction, proposing that s 257D(1)(d) was distinctly different from those matters addressed in the earlier subsections of the provision so that the eujusdem generis principle did not apply to create a closed class of matters capable of founding costs orders (citing the decision of Wood J in Fosse v DPP & Anor [1999] NSWSC 367). He also addressed the decision of Buddin J in Commonwealth DPP v Barnes [2010] NSWSC 1040, submitting that, even if the eujusdem generis principle was to be applied to a reading of s 257D, “it may be unreasonable conduct by the prosecutor that satisfies that consistency, or produces the relevant consistency, with the overall class, if there is one that been created by the statutory language” (Transcript 27 May 2022, page 16, lines 15 to 18).

48. Given that I have concluded that Goodman and Burton are entitled to the entirety of their costs of the proceedings, it is unnecessary to explore Mr Ireland's submissions concerning whether or not the Prosecutor would have been entitled to its costs of the costs’ motions had the costs’ Applicants been unsuccessful.

The submissions for the Prosecutor

49. The Prosecutor’s written submissions were also commendably succinct. After explaining the basis of the costs application as being pursuant s 257D(1)(d), the Prosecutor then addressed the costs application under two headings. These were “Charge unknown to law” and “Duplicity”. Given their brevity, it is appropriate to reproduce the Prosecutor’s written submissions under these headings in their entirety (paragraphs 6 to 15):

Charge unknown to law

6.   The first alleged deficiency is that in each case the prosecutor sought to proceed on a charge unknown to the law. The defendants rely on Cumberland Council v. Tony Younan; Cumberland Council v. Ronney Oueik; Cumberland Council v. H & M Renovations Pty Ltd (No 2) [2019] NSWLEC 67 at [87]. In that case, the defendants had been charged with offences against subs. 125 (3A) of the Environmental Planning and Assessment Act 1979. The charges were based on conduct that the prosecutor alleged had occurred in 2014: Younan at [6]. Subsection 125 (3A) had not commenced until 31 July 2015, ‘which is after 2014’: Younan at [57]. The charges were thus frankly and unequivocally unknown to the law. In that context, Robson J, in Younan at [87], found that ‘the prosecutor’s conduct in maintaining the s 125(3A) Summonses which included offences not known to law would also amount to an “exceptional circumstance”, thereby making it just and reasonable to award professional costs in those proceedings.’

7.   The present two cases can be distinguished, and not merely because the present prosecutor alleged contraventions of a provision that was in force at the time of the alleged contravening conduct. So far, the present cases have primarily comprised two significant interlocutory contests.

8.   In the first contest, the defendants relied on the duplicity arising from the particularization of the charge (Grounds 1-5), and some commensurate uncertainty (Grounds 4-5): Secretary, Department of Planning and Environment v. Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v. Burton Contractors Pty Ltd t/as Burton Civil Engineering Contractors [2020] NSWLEC 52 (‘the first judgment’) at [26]. They did not rely on a contention that the charges were unknown to the law and they accepted that the appropriate outcome if they were successful was that the prosecutor should have a further opportunity: first judgment at [27]. In the result, the Court made no finding that the summonses charged offences unknown to the law.

9.   In the second contest, duplicity was again the major issue but this time the defendants did also allege that the charge, as it was proposed to be particularized, would have been unknown to the law. It is significant that the defendants’ contentions were based on the detailed wording and drawing of the particulars and their lack of correlation with the relevant condition of development consent (Condition E25) and the instrument to which it referred (the Blue Book): Secretary, Department of Planning and Environment v. Goodman Property Services (Aust) Pty Ltd; Secretary, Department of Planning and Environment v. Burton Contractors Pty Ltd t/as Burton Civil Engineering Contractors [2021] NSWLEC 34 (‘the second judgment’) at [31], [32], [68] and [69]ff. It was in this sense—that the wording of the particulars did not correlate with the wording of the Condition that had allegedly been breached—that it was contended that the proposed amended summonses would have alleged offences not known to the law. There was no challenge to the wording of each charge itself—the charges themselves were to be unchanged—and no contention that what was said in the charges per se alleged an offence unknown to the law.

10. It is in this context, and in the sense just mentioned, that the prosecutor respectfully construes the second judgment. The Court concluded that the failure of the proposed new particulars to reflect the language of Condition E25 made the ‘proposed charge one not known to the law’: second judgment at [112]. The application for leave to amend was refused.

11.   Such a failure is distinctly less than actually laying and maintaining a charge that a person had offended against a provision that had not yet been enacted. The failure in the present case was in the nature of inadequate drafting in the context of a complex case, vigorously and competently defended. It was very far indeed from the unreasonableness, impropriety, bad faith and other grave failure that are the hallmarks of subs. 257D (1).

12. Should the Court reject this submission then the prosecutor notes the Court’s clearly and carefully made point that the defect in question had not existed throughout the proceedings: second judgment at [110]. Rather, the Court noted that the finding that the proposed charge was unknown to the law arose from ‘the language now sought to be relied upon in the “Manner of Breach” particularisation in the proposed Amended Summons’: second judgment at [111]. That language was introduced into the proceeding on 9 December 2020 by way of notices of motion filed that day: second judgment at [13] and [19]; see also at [21]. Should the Court be minded to award costs on the basis that the proposed charge would not have been known to the law then it should do so in respect of only the period commencing 9 December 2020.

Duplicity

13.   In support of seeking costs on the ground of the duplicity that the Court found, the defendants cite Environment Protection Authority v. Truegain Pty Ltd (2013) 85 NSWLR 125 at [99]. What was said there, however, is of little, and perhaps no, assistance to the present defendants.

14.   In Truegain at [98], the Leeming JA held that subs. 68 (1) of the Criminal Procedure Act did not confer a power to award costs, in large part because the contrary construction would have ‘cut across’ the scheme of ss. 257C and 257D. Then, at [99], his Honour observed that Truegain Pty Ltd could, at the end of the remitted proceedings, apply for costs and might get them if it could satisfy the elements of ss. 257C and 257D. That said nothing about what might be needed to satisfy those elements and it is not authority for (or against) the proposition that duplicity could satisfy subs. 257D (1). Leeming JA cited two cases but neither of those cases is authority for the proposition that duplicity is a ground that satisfies par. 257D (1) (d)—indeed, neither of the cases mentioned duplicity. Leeming JA said nothing more than that a party that can satisfy subs. 257D (1) can get a costs order, and that that happens often: his Honour said nothing that indicates that in the present case a costs order would be warranted.

15.   The true question must be whether or not the duplicity in this case was so egregious as to satisfy par. 257D (1) (d). An important consideration is that questions of duplicity are questions of fact and degree. In the result, on this Court’s assessment of the alleged facts and the degree to which they were covered by a single charge, the Court held that there was duplicity. That does not mean, however, that the prosecutor’s initial laying of the charges, or the attempt to refine the particulars of the charges, or the fact that this attempt did not cure the problem, were equivalent to impropriety, unreasonableness, bad faith, or other relevantly grave failure. The prosecutor’s efforts were not successful but that is not enough, and those efforts were far from an exceptional circumstance within the meaning of par. 257D (1) (d).

50. After briefly addressing matters of history concerning the proceedings set out in Mr Ireland’s written submissions, the Prosecutor then turned to explaining why Robson J's decision in Younan was to be distinguished - where the offence charged in those proceedings had not been enacted as at the date of the alleged offending conduct, submitting (Transcript 27 May 2022, page 18, lines 17 to 29):

That [Younan] was a fairly blunt and simple example of error. Contrast with this case we urge your Honour. We, the Prosecutor, was attempting to prosecute for breach of development condition, in particular development condition E25. It was deceptively simple that the development had to comply with the blue book.

As it turns out the blue book it’s an engineering type document more than a legal document, it speaks of shoulds, and recommendations, and best practices, and things like that, not a very good basis for legal enforcement. Nevertheless the law is plain, one must do one’s best to construe such an instrument where it has been legally adopted for a purpose, here a development consent, but plainly it was a much more complicated and difficult case to run.

51. The Prosecutor’s oral submissions then turned to addressing how the Prosecutor had responded to the finding in my first judgment that the original charge was duplicitous, saying (Transcript 27 May 2022, page 18, line 37 to page 19, line 9):

The Prosecutor then over the next few months progressively attempted to narrow the scope of the delinquency of the defendants. Instead of alleging that everything in the development was in breach, or at least a long list that went for pages, was in breach of the blue book, the first effort was to say that the requirement to have sedimentary basins had not been satisfied and that was detailed by reference to five catchment areas. And there was extra detail like a pertinent infrastructure which your Honour might recall when you review the papers. That was said by the defendants to be duplicitous and so ultimately we refined it down to a single catchment area.

There was another refinement, when still referring to the five catchment areas in June 2020 we also referred to about three or four different clauses of the blue book, and in December we’ve narrowed that down to a single clause 6.1.3(D)(ii), and a single catchment area. So to summarise even more we went from the whole development in the whole blue book, to the catchments and about four or five clauses, and then down to one catchment, and one clause of the blue book.

In the end the Prosecutor was unsuccessful, but the nature of the progress of the proceeding in our submission was to take a difficult development consent condition which had incorporated a whole book and gradually narrow it down by several steps, unsuccessfully, but that’s the way we would characterise the way the proceedings developed.

52. The Prosecutor next responded to Mr Ireland’s written and oral submissions concerning the eusdem generis principle. In essence, the Prosecutor acknowledged that, whether or not the principle applied was not a matter of importance, saying that, however it was to be construed, s 257D(1)(d) required a level of unreasonableness, or impropriety, on the part of the Prosecutor that warranted a costs order (Transcript 27 May 2022, page 19, lines 43 and 44).

53. The Prosecutor next addressed why it was submitted that I should consider, sequentially, the various elements of the Prosecutor’s conduct of the proceedings in order to obtain a proper and appropriate understanding of how the totality of the conduct should be characterised. He drew attention to the fact that the various defects which emerged from the Prosecutor’s attempts to formulate an appropriate charge arose from the various articulations of the particularisation of the charge rather than from there not being a proper statutory basis to provide a foundation for the charges (unlike the position in Younan where there was no statutory foundation). He next addressed the reasons of Leeming JA in Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204, submitting that that decision established that duplicity alone would not be a sufficient basis to warrant a costs order against a prosecutor, saying (Transcript 27 May 2022, page 21, lines 14 to 20):

Duplicity, as I have said before, is a matter of fact and degree, and your Honour so held, as did other judges in the past, only where that judgment of fact and degree was so grossly wrong on the part of the prosecutor that it amounts to unreasonableness to persist in the way that he did would a costs order be justified on that ground.

54. The Prosecutor then proposed that the duplicity basis advanced was not a sufficient basis for a costs order, nor was the fact that I had held, in my second decision, that the charge as then formulated was not known to law. The Prosecutor conceded that, in combination, these factors came close to warranting (but, correctly analysed, it was submitted, did not warrant) the making of a costs order against the Prosecutor.

55. The Prosecutor next turned to address the various marker dates I had identified, submitting that, if I was minded to make a costs order, such costs entitlement should only run from 9 December 2020 as, it was only at that point the finding that the charges were unknown to law actually crystallised. The Prosecutor said (Transcript 27 May 2022, page 22, lines 6 to 8):

We don’t concede that we should pay costs at all but if we should it’s at that point that the accumulated weight of our errors might become unreasonable.

56. The Prosecutor then turned to address the potential costs’ outcomes of the costs proceedings. Given the overall conclusion I have reached as to the appropriate outcomes, it is unnecessary to consider those submissions.

The reply submissions for the Defendants

57. In his oral reply submissions, Mr Ireland commenced by returning to elements of the history of the development of, and subsequent evolution of, the particularisation of the charge laid against the Defendants. It is not necessary to reproduce an analysis of this element of his reply.

58. However, it is pertinent to note that he submitted that the conduct of the Prosecutor in the evolution of the particularisation in support of the charge should be considered cumulatively and that, taken together, the conduct as a whole would be considered and found to lead to the justification for a costs order (Transcript 27 May 2022, page 27, lines 37 and 38).

59. Mr Ireland submitted that there was, viewing the Prosecutor's conduct as a whole, no basis to consider any alternative commencement date for a costs order other than the date of commencement of the proceedings. He submitted that, if the Defendants had established that they got through the s 257D(1)(d) gate, the just and reasonable result would be for a costs order from the commencement of the proceedings.

60. Mr Ireland then turned to addressing prospects of the impact of a partial success for the Defendants on what should be the costs’ outcome of these costs proceedings. Given the conclusion which I have reached, it is unnecessary to address these submissions.

Consideration of the Defendants’ costs’ claim

61. To understand, properly, the genesis of the issues which bedevilled the Prosecutor in endeavouring to formulate a charge capable of being laid against each of the Defendants, it is appropriate to reproduce the condition of the development consent granted to Goodman, being the condition (Condition E25) which the Prosecutor alleged was breached by the activities carried out on the site by Burton on Goodman's behalf. As can be seen from its terms reproduced earlier, Condition E25 refers to a document entitled Managing Urban Stormwater: Soils and Construction Guideline (Landcom).

62. As can be understood from a reading of my first and second decisions in their entirety, the requirement that the development be carried out in conformity with what was set out in relevant portions of the Blue Book was one incapable of providing a proper foundation for a criminal charge that required proof of an actus reus beyond reasonable doubt. The reason for this, as can be discerned from the earlier judgments (and particularly able to be understood from the discussion at [113] to [118] of my second judgment where I explained, briefly, the reasons why the language of cl 6.1.3(d)(ii) of the Blue Book necessitated findings of patent and latent duplicity) is that the Blue Book itself did not, relevant to the activities conducted by Burton on the Goodman site about which the Prosecutor was concerned, contain precise and prescriptive requirements - requirements where specific and measurable compliance was capable of being assessed.

63. The Blue Book, in at least the context of Condition E25, merely provided guidance. It was certainly not framed in any fashion embodying the precision necessary to ascertain any mandated set of measurable performance criteria.

64. In summary, the Blue Book, relevant to matters giving rise to the Prosecutor's complaint, can be seen as being, in part, merely a guide and, in another part, to be aspirational rather than prescriptively and measurably specific.

65. Viewed in this context, the underlying problem of the Prosecutor, in seeking to pursue the Defendants for what the Prosecutor considered was the inadequate non‑compliance with the requirements of Condition E25, was that the Prosecutor failed to appreciate the inadequacy of the foundation that had sought to be embodied in Condition E25. In the words of the Sunday School hymn of my childhood, the house was not built upon the rock but was, in fact, built upon the sand.

66. In this context, the fault lay with those who drafted the conditions of consent by incorporating a condition founded on a document which was, relevantly, advisory or hortatory only.

67. Viewed through the proper conceptual lens, Condition E25 was never capable of founding a valid charge to be laid against the Defendants for their earthworks‑related construction activities on the site, no matter how egregiously in breach of what the Prosecutor considered was the intent required for compliance with Condition E25.

68. It is not to be said that the consequence of my first and second decisions meant that no condition could have been crafted by those who prepared what were regarded as the appropriate mandating requirements to be imposed as arising out of the assessment stage of the merits of Goodman’s proposed development. It is not appropriate in proceedings such as these to speculate on how such requirements might have been conditioned; it is simply sufficient to understand that the Blue Book, in the fashion envisaged by Condition E25, did not validly do so. On any reading of the elements of that document that were relied upon by the Prosecutor for the purposes of endeavouring to frame the terms of a charge capable of being laid against the Defendants (where that charge was one known to the law and was not duplicitous - either patently or latently) was an impossibility.

69. Put simply, a proper consideration by the Prosecutor of the relevant provisions of the Blue Book as to whether or not they were capable of providing a valid foundation to charge the Defendants with non‑compliance with its requirements and, thus, breach of Condition E25 would have revealed that it was impossible to do so.

70. Viewed in this proper context, it is to be understood that no valid charge was capable of being framed based on an allegation of breach of Condition E25. Such a conclusion, if it had been drawn by the Prosecutor at the time of contemplating commencement of proceedings against the Defendants would have led to an understanding that to do so was both inappropriate and doomed to failure.

71. Any proceedings founded on Condition E25, when applied to the relevant activities about which the Prosecutor was dissatisfied and considered to be in breach of the condition, were never capable of being the subject of valid criminal charges. Proceedings should never have been commenced against either of the Defendants.

72. For these reasons, commencement of the proceedings against the Defendants can clearly be seen to fall within the matters satisfying s 257D(1)(d) of the Criminal Procedure Act and thus giving rise to a costs order against the Prosecutor.

73. As a consequence, it is appropriate that the Prosecutor should be ordered to pay the costs of each of the Defendants since the commencement of proceedings against them.

Costs of the Defendants’ costs applications

74. It is to be observed that the general proposition that costs follow the event was laid down by the High Court in Latoudis v Casey, itself a criminal case. Although these costs proceedings were to be considered through the merit lens limitation of s 257D(1)(d) of the Criminal Procedure Act, costs of these costs proceedings do require to be considered in the broader context of the event, the event being the outcome of the competing positions now advanced by the parties concerning the substantive proceedings giving rise to my first and second decisions.

75. In these costs proceedings, the event is clear. The Defendants have succeeded entirely in their costs application. They should, therefore, each have an order for their costs of these costs proceedings.

Orders

76. The orders of the Court are:

1. In Matter No 87062 of 2019:

1. Pursuant to s 257G of the Criminal Procedure Act 1986, the Prosecutor is to pay the Defendant’s costs of the proceedings as agreed or assessed; and

2. The Prosecutor is to pay the Defendant’s costs of the Defendant’s costs application as agreed or assessed.

2. In Matter No 87038 of 2019:

1. Pursuant to s 257G of the Criminal Procedure Act 1986, the Prosecutor is to pay the Defendant’s costs of the proceedings as agreed or assessed; and

2. The Prosecutor is to pay the Defendant’s costs of the Defendant’s costs application as agreed or assessed.

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Decision last updated: 26 July 2022