Willtara Constructions v Owen

[1999] NSWCCA 390

CITATION:	WILLTARA CONSTRUCTIONS v OWEN [1999] NSWCCA 390
FILE NUMBER(S):	CCA 60833/98
HEARING DATE(S):	23 November 1999
JUDGMENT DATE:	23 November 1999
PARTIES :	Applicant: Willtara Constructions Pty Limited Respondent: John Clyde Owen
JUDGMENT OF:	Sully J at 14; Hulme J at 2; Sperling J at 15

LOWER COURT JURISDICTION:	Land and Environment Court of New South Wales
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Bignold J

COUNSEL:	J Doyle - Applicant G Newport - Respondent
SOLICITORS:	Doyles Construction Lawyers - Applicant Alderdice & Clarke - Respondent
CATCHWORDS:	Criminal law; Appeal; Criminal Appeal Act ss5AA, 5AB; Law reform
DECISION:	The Appeal is dismissed as incompetent.

IN THE COURT OF
CRIMINAL APPEAL
No: 60833/98

SULLY J
HULME J
SPERLING J
23 November 1999
WILLTARA CONSTRUCTIONS PTY LIMITED v JOHN CLYDE OWEN
JUDGMENT

1    SULLY J: The court is in a position to deal with the preliminary point and Mr Justice Hulme will deliver the first judgment.

2    HULME J: On 6 July 1998 Willtara Constructions Pty Limited was tried before Bignold J sitting in the Land and Environment Court on a charge that Willtara Constructions Pty Limited did cause, permit or allow the disposal of waste, namely excavation soil and rock to be moved from a building site on adjoining lands No 9-13 Eddy Ave, Chatswood by depositing such waste upon public lands...Following a ruling by his Honour that the charge was duplicitous the prosecution elected to rely upon the allegation that the appellant to this court had allowed the disposal of waste.

3 On 3 September 1998 Bignold J ordered that the summons be dismissed and that the question of costs be reserved. Subsequently the defendant made application under s 52 of the Land and Environment Court Act 1979 for an order for costs.

4    On 11 December 1998 his Honour ordered: (1) the defendant's notice of motion seeking an order for costs is dismissed; (2) each party bear its own costs of the proceedings.

5    Willtara Constructions Pty Limited has appealed seeking:

"(a) that the order of the learned trial judge of 11/12/98 denying the appellant costs be set aside.
(b) that the Appeal Court exercise its discretion under ss 5AA and 5AB of the Criminal Appeal Act 1912 and make an order for costs in favour of the appellant."

6    The first question which arises concerns the power of this court to entertain the application. This was a point which had not been raised in any of the written submissions provided to the court but which was raised by the court at the commencement of the proceedings. In light of the view at which the court has arrived the court has heard no oral argument directed to other issues.

7 So far as is presently relevant ss 5AA(1) and 5AB of the Criminal Appeal Act provide:

5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction
(1) A person:
(a) convicted of an offence, or
(b) against whom an order to pay any costs is made,
by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.

5AB Appeal in criminal cases dealt with by Land and Environment Court in its summary jurisdiction
Section 5AA applies to and in respect of a person:
(a) convicted of an offence, or
(b) against whom an order to pay costs is made,
by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA (1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.

8    The appellant is clearly not someone convicted of an offence nor is it someone "against whom an order to pay costs is made". No such order against the appellant was made.

9    While in addition to dismissing the application seeking an order for costs Bignold J expressed himself in terms, "each party bear its own costs of the proceedings", this expression does not make the appellant a person "against whom an order to pay costs is made".

10    As between the parties to the litigation before his Honour, his Honour had decided to make no order for costs and it was only as between those parties that his Honour was dealing.

11    Willtara Constructions' liability for its own costs to its own legal advisers arose out of the retainer which it had given them. They were not parties to the proceedings before Bignold J and it cannot be thought that in those circumstances his Honour was purporting to make an order which bound Willtara Constructions on the one hand and in favour of, and enforceable by, Willtara Constructions' solicitors on the other.

12    Although its form of expression accorded with a form commonly used in the making of orders, what his Honour said in that regard went no further than was implicit in the order he had made dismissing the notice of motion.

13 Accordingly given the restrictive terms in which s 5AB permits an appeal to this court to be brought the appeal which has been instituted should be dismissed as incompetent.

14    SULLY J: I agree.

15    SPERLING J: I also agree with the order proposed by Hulme J and with his reasons. I would add the following observation. There may be as much injustice in dismissing an application for costs as in allowing such an application. Whilst it has been unnecessary for this court to enquire further this may be such a case.

16 The point in question arises as much in relation to s 5AA of the Criminal Appeal Act 1912 as in relation to s 5AB of the statute.

17 In Histollo Pty Ltd v Director General of National Parks and Wildlife Services (1998) 45 NSWLR 661 this court made a strong recommendation for amendment to s 5AA which relates not only to appeals from decisions of the Supreme Court in its summary jurisdiction but also, as in the present case, to appeals from the Land and Environment Court through s 5AB.

18 That recommendation was to make an appeal under s 5AA an appeal for error rather than an appeal by way of re-hearing. In the present proceedings, a further unsatisfactory and, I say, potentially unjust feature of that part of the statute has been revealed.

19    In the circumstances I would make a recommendation in the strongest possible terms that the legislature attend to the amendment of these provisions in both of the respects which I have mentioned. That could, no doubt, be done conveniently at one and the same time.

20    SULLY J: The order of the court is as proposed by his Honour Hulme J. The court as a whole endorses the recommendation appended to the order in terms just stated by his Honour Sperling J.