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

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

The Prosecutor's commencement and continuation of proceedings against the Defendants based on defective and duplicitous charges, repeatedly failing to cure defects known or discoverable from the outset, constituted exceptional circumstances within the meaning of s 257D(1)(d) of the Criminal Procedure Act 1986. It was just and reasonable to order the Prosecutor to pay the Defendants' professional costs for the entirety of the proceedings, including the costs applications themselves, because no valid charge was ever capable of being framed on the factual basis advanced and the proceedings should never have been commenced.

Jurisdiction
Australia
Judgment Date
26 July 2022
Procedural Posture
Criminal (class 5) / Costs Judgment Following Dismissal of Prosecutions
Outcome
Costs awarded to Defendants for entire proceedings and costs applications.
Legal Topics
['costs Arising From Unsuccessful Prosecution' 'exceptional Circumstances Under S 257 D Criminal Procedure Act 1986' 'duplicity in Criminal Charges' 'charges Unknown to Law' 'breach of Development Consent Conditions']
['criminal Procedure' 'planning Law' 'costs'] ['costs Arising From Unsuccessful Prosecution' 'exceptional Circumstances Under S 257 D Criminal Procedure Act 1986' 'duplicity in Criminal Charges' 'charges Unknown to Law' 'breach of Development Consent Conditions']

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Procedural Posture

Criminal (class 5) / Costs Judgment Following Dismissal of Prosecutions

Legal Issues

  1. 1 ["Whether the Prosecutor's conduct amounted to 'exceptional circumstances' under s 257D(1)(d) Criminal Procedure Act 1986 warranting a costs order in favour of the Defendants" "Whether the entirety of the Defendants' costs from the commencement of proceedings should be awarded" 'Whether duplicity and charges unknown to law can give rise to costs orders against a public prosecutor']

Ratio Decidendi

The Prosecutor's commencement and continuation of proceedings against the Defendants based on defective and duplicitous charges, repeatedly failing to cure defects known or discoverable from the outset, constituted exceptional circumstances within the meaning of s 257D(1)(d) of the Criminal Procedure Act 1986. It was just and reasonable to order the Prosecutor to pay the Defendants' professional costs for the entirety of the proceedings, including the costs applications themselves, because no valid charge was ever capable of being framed on the factual basis advanced and the proceedings should never have been commenced.

Court Disposition

Costs awarded to Defendants for entire proceedings and costs applications.

Orders

  • ["In Matter No 87062 of 2019: Prosecutor to pay Goodman Property Services (Aust) Pty Ltd's costs of the proceedings and its costs application as agreed or assessed." "In Matter No 87038 of 2019: Prosecutor to pay Burton Contractors Pty Ltd T/as Burton Civil Engineering Contractors's costs of the proceedings and its...