Land and Environment Court New South Wales Medium Neutral Citation: Hossein Yamini v The Council of the City of Sydney (No 2) [2020] NSWLEC 120 Hearing dates: On the papers Date of orders: 24 August 2020 Decision date: 24 August 2020 Jurisdiction: Class 6 Before: Duggan J Decision: See paragraph 27 Catchwords: COSTS – costs in appeal from Local Court – s 70 Crimes (Appeal and Review) Act 2001 – Council on notice appellant may not be guilty – Council unreasonably failed to investigate relevant matter – appellant awarded costs Legislation Cited: Crimes (Appeal and Review) Act 2001 Protection of the Environment Operations Act 1997 Cases Cited: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) (2014) 202 LGERA 203 Hossein Yamini v The Council of the City of Sydney [2020] NSWLEC 26 Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21 Preston v Zapantis [2015] NSWLEC 121 R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) CLR 470 Wehbe v Kogarah City Council [2015] NSWLEC 170 Wollongong City Council v Ensile Pty Limited (No 9) [2008] NSWLEC 248 Category: Costs Parties: Hossein Yamini (Appellant) The Council of the City of Sydney (Respondent) Representation: Counsel: Mr H Grace (Appellant) Mr A Singh (Solicitor for the Respondent) Solicitors: Bick & Steele (Appellant) City of Sydney Council (Respondent) File Number(s): 2019/00254117 Publication restriction: No Judgment Nature of proceedings 1. Mr Yamini, (the Appellant), seeks an order that the Council pay his costs of his successful appeal in this Court from his conviction in the Local Court. Background facts 1. These proceedings relate to the Appellant's appeal against a failure to comply with a prevention notice (the Prevention Notice) given pursuant to s 97 of the Protection of the Environment Operations Act 1997 (POEO Act). The appeal was upheld in Hossein Yamini v The Council of the City of Sydney [2020] NSWLEC 26 on the basis that the Prosecutor had failed to establish to the necessary standard that the Appellant was the occupier of the relevant premises. The facts and findings I made in connection with the appeal are relied upon but not repeated here. Legislative provisions 1. Section 49(4) of the Crimes (Appeal and Review) Act 2001 (CAR Act) empowers this Court to make costs orders: 49 Miscellaneous powers … (4) Subject to section 70, the Land and Environment Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just. 1. Section 70 provides that this Court may award costs against a Council in an appeal only in limited circumstances: 70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied— (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter— (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant. … Appellant's submissions 1. The Appellant relies upon each of the subsections of s 70(1) to justify an award of costs in his favour. 2. In summary the Appellant submits: 1. Section 70(1)(a) – that the Council failed to investigate relevant matters, and therefore, the investigation into the offence was conducted in an unreasonable manner; 2. Section 70(1)(b) – that the Council failed to adduce evidence "either at all or sufficient to discharge the burden of establishing that the Appellant was the occupier of Shop 3", therefore, the prosecution was initiated without reasonable cause. As this was an essential element of the offence, the consequence is that the proceedings had no substantial prospects of success and were doomed to failure at the time they were initiated: Wehbe v Kogarah City Council [2015] NSWLEC 170 at [15]-[16]; 3. Section 70(1)(c) – that the Council was, or ought to have been, on notice of matters that suggested that the Appellant was not guilty of the offence charged as he was not the occupier of the premises. It was contended that Council should have been on notice as: 1. Admissions from the Council's senior environmental officer, Nina Chan, established that she did not know the location of the leak. The issuing of a Prevention Notice requires ascertaining the premises at which the activity is being carried out to then properly identify the occupier; 2. The Appellant informed Ms Chan that: the leak was coming from Shop 3; he was not the occupier of Shop 3; and Shop 3 was in fact occupied by a tenant; 3. The tenant informed Ms Chan that he was the occupier of Shop 3; and 4. The Appellant informed Ms Chan on multiple occasions that the leak originated on land of which he was not the occupier. Collectively, these circumstances would reasonably give rise to a need for further investigations into the identity of the occupier, but no such investigations, such as interviewing the tenant, were undertaken. As such, the Council had unreasonably failed to investigate these matters when it related to an essential element of the offence and where there was compelling evidence that the Appellant was not the occupier. 1. Section 70(1)(d) – that the decision to proceed with the prosecution in the absence of a proper investigation and evidence of an essential element of the offence constitutes "exceptional circumstances". Respondent Council's submissions 1. The Council submits that for the purpose of the prosecution, it was entitled to rely upon the presumption in s 258(1) of the POEO Act that the Appellant was the occupier of the premises. Section 258(1) relevantly provides: 258 Evidence relating to occupier of premises (1) In any proceedings under this Act, no proof is required (until evidence is given to the contrary) of the fact that a person is, or at any relevant time was, the occupier of any premises to which the proceedings relate. 1. The Council submits that for the purposes of ss 70(1)(a) and 70(1)(c), the test for whether the investigation was conducted in an unreasonable manner is purely objective: Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21 at [15]. The decision on the Appeal in this case does not criticise the investigation so as to render it capable of being described as unreasonable. 2. The Council brought the decision of Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 to the Court's attention which held at [21] that: … in relation to s. 70(1)(a), I do not think it is necessary for the person seeking costs in every case to show that an investigation conducted in a reasonable manner would have suggested that the appellant might not be guilty or that the proceedings ought not to be brought. If a prosecutor knows there are five eye-witnesses to an event, and interviews if the prosecutor knows there is an eye-witness to what happened, but does not interview this witness, and instead relies wholly on a circumstantial case, in my opinion s. 70(1)(a) may be satisfied even if the person seeking costs does not prove what the eye-witness would have said. 1. The Council contended that Cliftleigh should be distinguished on its facts as the charge to which these proceedings related required the Council to establish that the Appellant was a person to whom a Prevention Notice has given and he failed to comply with that notice. The issue of whether the Appellant was relevantly the occupier only arose in the collateral challenge in the proceedings after he gave evidence that he was not the occupier of the premises. It was only at that point that the Council had to prove the Appellant was the "occupier". 2. Cliftleigh can be further distinguished as the circumstances in the present case as the identity of the occupier was not required until evidence to the contrary is given, which is distinguishable from not interviewing eyewitnesses to an event. 3. If, notwithstanding its submissions, the Court found that the actions of the Appellant should have put Council on notice that the Appellant would raise a collateral challenge in the proceedings, this would not change the fact that there was nothing sufficiently unreasonable about the investigation to satisfy s 70(1)(a) or s 70(1)(c). 4. The Council contends that there is no foundation for a finding under s 70(1)(b). The Council accepts that the test stated in Wehbe is appropriate, however, it submits that the facts are distinguishable. In Wehbe, the prosecution was brought under the wrong limb of the section charged and, as such, the proceedings were not capable of being successful. In contrast, in the current proceedings the Council simply failed to establish to the necessary standard one element of the offence. No proof was required for this element until evidence was given to the contrary, which, in these proceedings, consisted of the Appellant's assertions made in the Local Court. Until that point it remained possible that the Council may have found further evidence to satisfy the Court that the Appellant was the occupier of the under floor area of Shop 3. Further, as held in R v Moore; Ex parte Federated Miscellaneous Workers' Union of Australia (1978) CLR 470, a party will not have commenced proceedings without reasonable cause "simply because the argument proves unsuccessful". And, as Pain J acknowledged in Environment Protection Authority v Bulga Coal Management Pty Ltd (No 2) (2014) 202 LGERA 203 at [71], the threshold to satisfy this subsection is a high one. These do not represent proceedings doomed to failure at the time of initiation and thus initiated without reasonable cause. 5. Whilst there is overlap and similarity between ss 70(1)(a) and 70(1)(c), s 70(1)(a) refers to the investigation into the alleged offences being conducted unreasonably, whereas s 70(1)(c) refers to an unreasonable failure to investigate any relevant matter, with the additional requirement that the relevant matter suggest that the appellant might not be guilty or that the proceedings should not have been brought. 6. Wollongong City Council v Ensile Pty Limited (No 9) [2008] NSWLEC 248 is an example of where this ground has been successfully argued. In that case the Council unreasonably failed to identify in its own records a relevant fact that may have shown that the defendant was not guilty. This is compared with the present case, where, because of the presumption in s 258, the Council did not need to prove who the occupier was until evidence was given to the contrary. As such, the Council did not unreasonably fail to uncover evidence that the Appellant was not the occupier. 7. The Appellant's submissions do not disclose the alleged consequences of any alleged failure to investigate a relevant matter. 8. The Council cited Preston v Zapantis [2015] NSWLEC 121 where Pepper J awarded costs pursuant to s 70(1)(d). The Council sought to distinguish this case by stating that the running of the Local Court trial in Preston was "particularly poorly undertaken" as the accused was not aware of the facts alleged and that much of the prosecution's evidence was considered inadmissible. The Council submits that there are no exceptional circumstances in the conduct of these proceedings that would satisfy the Court of s 70(1)(d). 9. Alternatively, the Council submits that the Court should exercise its discretion to not award costs against the Prosecutor as the circumstances of the case gave rise to a need for the Council to take reasonable action to address the impacts of the leak at the premises. Findings 1. The power of the Court to award costs in a Class 6 appeal is conferred by s 49(4) of the CAR Act. However, this power is subject to satisfaction of at least one or more of the circumstances in s 70(1) of the Act. For the reasons that follow, in this case, the Appellant is entitled to an order for costs as the Council unreasonably failed to investigate a relevant matter that it ought to have been reasonably aware of and that suggested that the Appellant might not be guilty: s 70(1)(c), and there is no reason in the exercise of the Court's discretion that would warrant the order not being made. 2. In order for there to be an unreasonable failure to investigate a matter, the Court must be satisfied that both: 1. The Prosecutor was or ought to have been reasonably aware of the relevant matter; and 2. The matter suggested that the Appellant might not be guilty or that the proceedings should not have been brought. 1. In this case, a relevant question was whether the Appellant was the occupier of the premises. Whilst the Council was entitled to rely upon the statutory presumption in s 258 of the POEO Act, the Appellant (and others) at multiple times prior to the commencement of the proceedings, alerted the Council to the probability that the presumption could be rebutted. The investigation revealed that the essential requirement for the giving of the Prevention Notice was likely to be a matter raised in any criminal prosecution. Whilst s 258 provides a presumption, where the investigation reveals that the presumption is likely to be rebutted it is unreasonable for the Council to choose not to investigate the identity of the occupier of the location of the leak. 2. In the current case, the multiple occasions on which the dispute as to occupier were brought to the Council should have put the Council on notice that the Appellant may not be guilty. The Council, thereafter, took no specific action to investigate this issue, including a failure to interview the tenant, which indicates that the Council unreasonably failed to investigate this relevant matter. 3. Despite what the Council submits, there need not be any identified consequences for a failure to investigate a relevant matter – the provision simply requires consideration that the matter suggested the Appellant might not be guilty or proceedings should not have been brought, as has been found here. 4. As it has been satisfied that the Appellant's costs should be awarded pursuant to s 70(1)(c), there is no need to make findings in relation to the alternative bases relied upon by the Appellant. 5. As such, s 70(1)(c) has been satisfied. 6. There remains a residual discretion to decline to make an order notwithstanding satisfaction with a matter in s 70(1). In this case, the Council asserts that the Court would take into account that the consequences of the leak warranted action being taken for remedial action. Whilst this may be accepted, in this case the remedial action was the issuing of the Prevention Notice. The criminal proceedings are punishment for failing to comply with the notice, not a means of obtaining compliance with it. Accordingly, such considerations do not disentitle the Appellant from an order for costs. Orders 1. The Court orders that the Council is to pay the Appellant's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2020