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

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 Ronney Oueik; 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)