Fairfield City Council v El Nachar [2009] NSWLEC 154

Fairfield City Council v El Nachar [2009] NSWLEC 154

The Defendant did not establish any ground under s 257D(1) of the Criminal Procedure Act 1986. The Council reasonably commenced the proceedings because the Defendant was the registered proprietor, was the named applicant and recipient of the development consent, and the works had been carried out without a construction certificate. It was not unreasonable for the Council officer not to ask for photographic identification when the person on site acted as if he was the Defendant. The Council took active and proper steps in response to the Defendant's representations, including inquiries into the asserted alibi and trust arrangement. Given the late disclosure of the trust claim, the absence...

Jurisdiction
Australia
Judgment Date
08 September 2009
Procedural Posture
Class 5 Criminal Proceedings; Costs Application / Defendant's Notice of Motion for Costs After Two Prosecutions Were Discontinued and Dismissed
Outcome
Motion dismissed; each party to pay its own costs of the motion.
Legal Topics
['costs Against a Prosecutor Acting in a Public Capacity' 'failure to Investigate' 'exceptional Circumstances' 'building Work Without a Construction Certificate']
['criminal Procedure' 'costs' 'environmental Planning and Assessment'] ['costs Against a Prosecutor Acting in a Public Capacity' 'failure to Investigate' 'exceptional Circumstances' 'building Work Without a Construction Certificate']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings; Costs Application / Defendant's Notice of Motion for Costs After Two Prosecutions Were Discontinued and Dismissed

Legal Issues

  1. 1 ["Whether the prosecutor's investigation into the alleged offences was conducted in an unreasonable or improper manner under s 257D(1)(a) of the Criminal Procedure Act 1986." 'Whether the prosecutor unreasonably failed to investigate properly a relevant matter suggesting that the defendant might not be guilty or that the proceedings should not have been brought under s 257D(1)(c) of the Criminal Procedure Act 1986.' "Whether exceptional circumstances relating to the prosecutor's conduct of the proceedings made it just and reasonable to award professional costs under s 257D(1)(d) of the Criminal Procedure Act 1986."]

Ratio Decidendi

The Defendant did not establish any ground under s 257D(1) of the Criminal Procedure Act 1986. The Council reasonably commenced the proceedings because the Defendant was the registered proprietor, was the named applicant and recipient of the development consent, and the works had been carried out without a construction certificate. It was not unreasonable for the Council officer not to ask for photographic identification when the person on site acted as if he was the Defendant. The Council took active and proper steps in response to the Defendant's representations, including inquiries into the asserted alibi and trust arrangement. Given the late disclosure of the trust claim, the absence...

Court Disposition

Motion dismissed; each party to pay its own costs of the motion.

Orders

  • ["The Defendant's Notice of Motion is dismissed." "Each party is to pay its own costs of the Defendant's Notice of Motion."]