Land and Environment Court of New South Wales CITATION : Cliftleigh Haulage Pty Limited v Byron Shire Council [2006] NSWLEC 197 APPELLANT Cliftleigh Haulage Pty Limited PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 60004 of 2005 CORAM: Talbot J KEY ISSUES: Costs :- discussion of limited grounds for costs order against a prosecutor when conviction set aside on appeal. LEGISLATION CITED: Crimes (Local Courts Appeal and Review) Act 2001, s70, s49 CASES CITED: Killick v The Queen (1981) 147 CLR 565; Latoudis v Casey (1991) 170 CLR 534 DATES OF HEARING: 15/03/2006 DATE OF JUDGMENT: 04/26/2006 APPELLANT Mr E Y Ozen (barrister) SOLICITORS Stacks Forster LEGAL REPRESENTATIVES: RESPONDENT Mr M L Wright (barrister) SOLICITORS Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Talbot J 26 April 2006 60004 of 2005 Cliftleigh Haulage Pty Limited v Byron Shire Council JUDGMENT 1 Talbot J: The appellant has been successful in its appeal from the decision of the magistrate at first instance and now seeks an order for its costs not only in respect of the appeal but also for the hearing at first instance. The appellant also seeks a special order that senior counsel's fees be certified in the appeal. 2 Section 70 of the Crimes (Local Courts Appeal and Review) Act 2001 ("the Appeal Act") places a limit on the costs on appeal that can be awarded against a public prosecutor as follows: (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. 3 No issue has been raised that s 70 does not apply to the awarding of costs against the present respondent. 4 At the hearing of the appeal, Mr Craig Leggat SC appeared with Mr Ertunc Ozen for the appellant and Mr Michael Wright appeared for the respondent. Different counsel appeared for both parties in the hearing before the magistrate. Mr Leggat did not appear on the separate hearing on the notice of motion seeking costs orders. 5 On appeal I held that the respondent failed to prove that crushed cars observed by relevant officers of the council were crushed by any person acting on behalf of the company. Furthermore all of the plausible explanations for the crushing of the cars were not eliminated in the context of the circumstantial case against the company. Moreover I was not satisfied that the leaving of a key in the ignition of the appellant's machine while it remained unattended at a remote location was sufficient to uphold the charge. 6 Generally it is the appellant's case in relation to costs that there was an unreasonable failure on the part of the prosecutor to investigate a relevant matter as contemplated by s 70(1)(c) of the Appeal Act. That case appears to be based upon an alleged failure to enquire of the owner of the land, Mr Harrop, as to what he observed in relation to the alleged crushing of cars between the nominated dates and whether any employee of the appellant was present on those dates. 7 The appellant also relies upon the failure of the prosecutor to negative the alibi of the appellant. The alibi was set up before the trial and the council was thereby given an opportunity to test it (Killick v The Queen (1981) 147 CLR 565). 8 The appellant relies on the fact that when Mr Alan Irvine, the principal of the defendant company, arrived at the site on 4 August 2004 the track was off the excavator to show that someone other than an experienced operator had been using the excavator. This, according to the appellant, should have been investigated by the prosecutor and is inconsistent with the appellant's guilt. 9 Ultimately this court accepted that there was no evidence that any person acting on the authority of the company was present on the site during the relevant period including Mr Irvine. As I have said at paragraph 7 of my first judgment, Mr Irvine's testimony concentrated on the alibi evidence and that neither he nor any of the employees of the company were present at the site during the relevant period. I ultimately found, in the face of express denials by Mr Miller, an employee of the defendant company, and Mr Irvine that neither of them were present during the relevant time. Mr Irvine's consistent claim is that no one was authorised to crush cars on behalf of the company on the relevant dates. The evidence therefore did not establish that the cars observed by council officers on 1 August 2004 were crushed by any person acting on behalf of the company. 10 The argument in relation to the raising of an alibi by the defendant is in my opinion misconceived. The letter dated 22 February 2005 relied upon by the appellant merely asserts that there were no employees, officers or other personnel of the defendant company on the subject site on Saturday 31 July 2004. There is reference to previous advice having been given to the council that Mr Irvine was in Nowra on that day and the means by which that could be proved. Any successful alibi by Mr Irvine does not negative the prospect that other employees of the company were present and involved in the crushing of cars during the relevant period. 11 Moreover the so-called alibi evidence of Mr Irvine related only to 31 July 2004. It was originally alleged that cars were crushed between 30 July and 1 August 2004. During the course of the hearing the particulars were amended to extend the period of the alleged crushing operation to 5 August 2004. In the circumstances, the fact that Mr Irvine could prove, as alleged by his solicitors in the letter, that he was in Nowra on Saturday 31 July 2004 could not have been a complete answer to the charge as he could have been present on other days. Additionally there were other employees of the defendant company who had been working on the site at or about the relevant date whose movements are not accounted for in the letter. 12 Finally the letter was not accompanied by any proof, but rather an assertion that the facts could easily be proved. The author of the letter observed: However, as you are aware the defendant is under no obligation to prove the whereabouts of its servants on the day in question until such time as you establish a prima facie case that the defendant company committed the alleged offence on that particular date. 13 Notwithstanding the assertions made by the defendant's solicitor prior to the trial it was entirely reasonable for the prosecutor to take the position that the defendant's evidence could be tested at the trial. 14 The prosecutor seeks to argue that it had no responsibility to call Mr Harrop. He is alleged to have made a statement that Mr Irvine and others had been on the land using the company's equipment to crush cars. Rather the prosecutor says it was entitled to run its case as it saw fit and it was up to the defendant to call Mr Harrop if it so desired. I reject the prosecutor's argument in this respect. No reason has been given for the failure to call Mr Harrop. Yet he was a significant person of interest who had apparently indicated that he could give direct evidence of events that occurred during the relevant dates. I find therefore that the respondent prosecutor did not elect to call a critical witness. 15 However it is also important to note that the defendant did not, as was its right, insist that the witness be called. During cross-examination Mr Irvine confirmed that a subpoena was issued requiring Mr Harrop to attend the hearing. However he was not able to give an account of what Mr Harrop would have said in evidence. Evidence was given by council compliance officer Andrew Bruce Hill that he had a conversation with Mr Harrop and he was told by Mr Harrop that Mr Irvine had crushed cars on Saturday 31 July 2004. Notably this is the day upon which Mr Irvine was able to show that he was in Nowra. 16 The evidence of Mr Harrop was not such that would have suggested the appellant might not have been guilty or that the proceedings should not have been brought. It would have been anticipated that his evidence would have been to the contrary. There is the complicating factor that apparently the defendant had arranged for a subpoena to be issued against Mr Harrop but did not pursue the matter when he did not appear. After referring to conversation with Mr Harrop the magistrate recognised that: There certainly is some conjecture as to the person he described as Spike who he said is Mr Irvine but there is no explanation in the absence of that witness being available for cross-examination as to what he actually meant and really, I form a irrevocable conclusion that this work was undertaken by the accused. 17 In order to reach that conclusion it appears to me, although not expressly stated, that His Honour the learned magistrate relied on the hearsay evidence of what Mr Harrop had asserted to reach that conclusion. Effectively I did not agree with that conclusion for the reasons set out in my first judgment. However in not so agreeing I was not necessarily saying or inferring that the prosecutor unreasonably failed to investigate any relevant matter within the meaning of s 70(1)(c). I cannot determine what the outcome would have been if Mr Harrop had been called to give evidence for either side at the first hearing. Accordingly I am not able to say that his evidence would have suggested that the appellant might not be guilty or that the proceedings should not have been brought. Section 70 requires a positive finding that the appeal court is satisfied about one or other of the matters set out in the section. I am not in a position to make such a finding. 18 In some respects I find the limit on the capacity to make a costs order imposed by s 70 curious. This is particularly so in a case such as the present where an appellant is successful essentially on the basis that the judgment at first instance miscarried for the reasons that I explained. My judgment on appeal is based on the same facts available to the magistrate. The hearing on appeal took place in accordance with the provisions of s 37 of the Appeal Act and no fresh evidence was called. 19 Notwithstanding that the appellant was wholly successful on the appeal I am not able to find within the confines of s 70 that it is entitled to an order for costs in its favour. 20 Although the appellant has been unsuccessful having regard to the exacting provisions of s 70 I must make it quite clear that if I was not so constrained and based upon the reasoning of the High Court in Latoudis v Casey (1991) 170 CLR 534 I would have made an order in favour of the appellant in respect of the appeal. Although the result appears to be unjust in the circumstances my discretion is limited by the section. There would be yet a further injustice if the appellant was required to pay the costs of the prosecutor in respect of the hearing of the notice of motion seeking a costs order. 21 It was conceded by the respondent that it should not be entitled to rely on the costs order in its favour made by the lower court. Section 49(2) provides that the Land and Environment Court on appeal may exercise any function that the original Local Court could have exercised in the original proceedings. The costs order made by the magistrate at first instance may be set aside. 22 It will be apparent from the observations made above in regard to the application of s 70 that in my opinion the defendant in the proceedings below is entitled to a costs order on the basis that the charge should have been dismissed by the learned magistrate. The amount claimed in the sum of $10,874 is based on a solicitor-client assessment. Doing the best I can after having regard to the evidence from the appellant's solicitor and the itemised account presented I propose to allow the defendant's costs in the sum of $7,500 including disbursements. The council is entitled to a credit for payment made by it pursuant to an earlier order when an adjournment was granted on the council's application. 23 Both parties have enjoyed some success on the Notice of Motion and accordingly it is appropriate that each party pay their own costs in respect of the Motion. 24 Accordingly, I order that: 1. The costs order made by the court below be set aside. 2. The respondent pay the applicant's costs in the court below in the amount of $7,500 with credit to be given for the amount of $500 already paid. 3. The application for an order that the respondent pay the appellant's costs in this appeal is dismissed. 4. Each party pay their own costs on the Notice of Motion. 5. The exhibit may be returned. 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.