WILLTARA CONSTRUCTIONS v OWEN [1999] NSWCCA 390

New South Wales Court of Criminal Appeal 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.