Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd

CITATION : Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No. 2) [2009] NSWLEC 200

LEC No. 50068 of 2005 Director-General, Department of Environment and Climate Change (Prosecutor) David John Gleeson (Defendant) PARTIES : LEC No. 50069 of 2005 Director-General, Department of Environment and Climate Change (Prosecutor) Epacris Pty Ltd (Defendant)

FILE NUMBER(S) : 50068 of 2005; 50069 of 2005

CRIMINAL LAW :- permanent stay of prosecutions - abuse of process - award of costs - statutory costs regime - inherent or implied power to award costs - discretion KEY ISSUES: COSTS:- criminal prosecutions - permanent stay - power to award costs

Criminal Procedure Act 1986 (NSW) s 253 (repealed), ss 257A to 257G Justices Act 1902 (NSW) s 80 (repealed) LEGISLATION CITED: Land and Environment Court Act 1979 (NSW) s 52 (repealed) Native Vegetation Conservation Act 1997 (NSW) s 21 (repealed) Summary Jurisdiction Act 1848 (UK) s 14 and s 18 (repealed) Supreme Court (Summary Jurisdiction) Act 1967 (NSW) s 14 (repealed)

Carter v Wall [2003] NSWLEC 94; (2003) 126 LGERA 310 Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 Director of Public Prosecutions v Boykin (Supreme Court of New South Wales, 21 June 1994, Wood J, unreported) Director-General, Department of Community v Houdek [1999] NSWSC 1031 Director-General, Department of Environment and Climate Change v Epacris Pty Ltd; Director-General, Department of Environment and Climate Change v Gleeson [2009] NSWLEC 42; (2009) 165 LGERA 99 Director-General, Department of Land and Water Conservation v Pye (No. 2) [1999] NSWLEC 45 Director-General Department of Natural Resources v Gleeson [2007] NSWLEC 749 Director-General Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306; (2006) 147 LGERA 372 Epacris Pty Ltd v Director-General Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507; (2007) 153 LGERA 173 Jago v District Court (NSW) (1989) 168 CLR 23 Latoudis v Casey (1990) 170 CLR 534 CASES CITED: Liverpool City Council v Hodge [2006] NSWLEC 21; (2006) 143 LGERA 261 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 Mantel v Anstee [2001] NSWLEC 202; (2001) 116 LGERA 269 Markisic v Vizza [2002] NSWCCA 53 R v Barbaro (1992) 108 ACTR 1; (1992) 106 FLR 387 R v Goia (1988) 19 FCR 212 R v Hay; Ex parte Patane [1981] Qd R 152 R v JS (No. 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10 R v Nicholl; Ex parte Webster (1979) 26 ACTR 19; (1979) 1 A Crim R 306 Walker v Baehnk (No. 2) (1987) 44 SASR 380 Ward v Hodgkins [1957] VR 715 Watson v Attorney-General (NSW) (1987) 8 NSWLR 685

PROSECUTOR: D A Buchanan SC and E G H Cox (barrister) SOLICITOR: I V Knight LEGAL REPRESENTATIVES: Crown Solicitor

DEFENDANTS: J M Ireland QC and J B Maston (barrister) SOLICITORS: McGirr James Hall & Associates

JUDGMENT:

• 20 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT & CLIMATE CHANGE v GLEESON; DIRECTOR-GENERAL, DEPARTMENT OF ENVIRONMENT & CLIMATE CHANGE v EPACRIS PTY LTD (No. 2) [2009] NSWLEC 200

JUDGMENT 1 HIS HONOUR: On 6 April 2009, I permanently stayed prosecutions brought under the Native Vegetation Conservation Act 1997 against each defendant, Epacris Pty Ltd and Mr David John Gleeson, a director of Epacris: Director-General, Department of Environment and Climate Change v Epacris Pty Ltd; Director-General, Department of Environment and Climate Change v Gleeson [2009] NSWLEC 42; (2009) 165 LGERA 99. The defendants now claim an order that the prosecutor pay the defendants' costs of the proceedings in each case. The questions for determination are:

(a) whether the Court has the power to make an order for costs where the prosecution is permanently stayed, rather than dismissed; and

(b) if so, whether in the exercise of the Court's discretion an order for costs should be made.

Does the Court have the power to make an order for costs? 2 The prosecutor submits that: (a) the jurisdiction to make an order for costs in criminal prosecutions is statutory; (b) the statutory jurisdiction only permits an order against a prosecutor where the court has made an order dismissing the charge for an offence; and (c) a stay does not amount to dismissal of a charge. 3 The defendants submit that: (a) the Court has both a statutory and an inherent or implied power to make an order for costs in criminal proceedings; (b) if the power is only statutory, a permanent stay is an order which is tantamount to dismissal of a charge; and (c) alternatively, the power to make an order following a stay does not depend upon statutory provisions as to costs but stems from the inherent or implied power to control and properly dispose of proceedings.

The statutory power to order payment of costs 4 The parties agree that the statutory power to order the payment of costs in the present case is s 253 of the Criminal Procedure Act 1986. That section was repealed on 13 July 2006, when a new raft of statutory provisions as to costs in criminal proceedings was enacted - see now Pt 5 Div 4 of the Act (ss 257A to 257G). Section 253, despite its repeal, is saved, however, and continues to apply to the present proceedings by the Criminal Procedure Act, Sch 2, cl 50. 5 Section 253 relevantly stated: " 253 Court may order payment of costs (1) A court may, in and by a conviction or order, order an accused person to pay to the prosecutor such costs as the court specifies or, if the conviction or order directs, as may be determined under subsection (2), if: (a) the court convicts the accused person of an offence, or (b) (Repealed) (c) the court makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of an offence. (1A) A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2). (2) The costs payable by a prosecutor or accused person in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and accused person, and (b) if no such agreement can be reached, in accordance with the rules. ..."

The prosecutor's submissions 6 Shortly stated, the prosecutor submits that the statute is a code which covers the field and that dismissal of a charge is a final order made after a hearing on the merits, whereas a stay is an interlocutory order. The prosecutor further submits that "an order dismissing the charge", referred to in s 253(1A), is informed by the historical background to the statute and understood by construing the words in their context. 7 Before 7 July 2003, summary criminal proceedings in this Court were regulated by ss 41 to 55 of the Land and Environment Court Act 1979. Section 52 was to a similar effect as s 253 of the Criminal Procedure Act: " 52 Judge may order payment of costs (1) Where a Judge: (a) convicts any person of an offence punishable in the summary jurisdiction of the Court, (b) makes an order dismissing the charge for any such offence, or (c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence,

the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2). (2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and defendant, or (b) if no such agreement can be reached, in accordance with the regulations. ..." 8 In Director-General, Department of Land and Water Conservation v Pye (No. 2) [1999] NSWLEC 45, I held, at [17], that s 52 is a specific provision as to costs in the Court's summary criminal jurisdiction which circumscribed the general power to make orders for costs under the then s 69 of the Land and Environment Court Act. In Mantel v Anstee [2001] NSWLEC 202; (2001) 116 LGERA 269, Bignold J held, at [4], that the Court's power to order costs in the summary criminal jurisdiction is exclusively governed by s 52 of the Land and Environment Court Act, since "the general costs power conferred by s 69 of that Act is expressly declared not to apply to proceedings in Class 5, 6 or 7 of the Court's jurisdiction: vide s 69(8)". In Carter v Wall [2003] NSWLEC 94; (2003) 126 LGERA 310, Cowdroy J held, at [23], that since the broad discretion to award costs under s 69 of the Land and Environment Court Act does not apply to the summary criminal jurisdiction, then s 52(1) is the only statutory provision that enables the Court to make orders for costs in such proceedings. 9 Upon repeal of ss 41 to 55 of the Land and Environment Court Act, the statutory provision relating to costs in criminal proceedings was s 253 of the Criminal Procedure Act. A similar provision to s 52 existed in the Supreme Court (Summary Jurisdiction) Act 1967, s 14, since repealed, so that costs in the summary criminal jurisdiction of the Supreme Court are also now governed by the provisions in the Criminal Procedure Act - initially s 253 and, since the repeal of that section on 13 July 2006, by ss 257A to 257G. 10 The prosecutor submits that the phrase "an order dismissing the charge" in each of s 253 of the Criminal Procedure Act, s 52 of the Land and Environment Court Act and s 14 of the Supreme Court (Summary Jurisdiction) Act gains its meaning from the predecessor provisions, first in the Summary Jurisdiction Act 1848 (UK) and then the Justices Act 1902 (NSW). 11 The Summary Jurisdiction Act 1848 (UK) applied in New South Wales until 1902. Section 14, which provided for the conduct of the hearing of an information or complaint, stated: " ... and the said Justice or Justices, having heard what each Party shall have to say as aforesaid, and the Witnesses and Evidence so adduced, shall consider the whole matter, and determine the same, and shall convict or make an Order upon the Defendant, or dismiss the Information or Complaint, as the Case may be; ... " 12 The section then stated that if the justice or justices were to dismiss the information or complaint then: "... it shall be lawful for such Justice or Justices, if he or they shall think fit, being required so to do, to make an Order of Dismissal of the same, and shall give the Defendant in that Behalf a Certificate thereof, which said Certificate afterwards, upon being produced, without further Proof, shall be a Bar to any subsequent Information or Complaint for the same Matter respectively against the same Party... " 13 Section 18 stated that in cases where the justice or justices dismiss the information or complaint: "... it shall be lawful for him or them, in his or their Discretion, in and by his or their order of Dismissal to award and order that the Prosecutor or Complaint respectively shall pay to the Defendant such Costs as to such Justice or Justices shall seem just and reasonable ,..." 14 The Summary Jurisdiction Act was repealed and replaced by the Justices Act 1902 (NSW). Section 80 relevantly stated: "After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require." 15 Section 85 provided for the drawing up of an order of dismissal and giving the defendant a certificate thereof, which would operate as a bar to a subsequent information or complaint for the same matter against the same person. 16 Section 81(1) provided for the making of an order for costs: " The Justice or Justices making any conviction or order may in and by such conviction or order adjudge that the defendant shall pay to the prosecutor or complainant or, in the case of an order of dismissal, that the prosecutor or complainant shall pay to the defendant such costs as to the Justice or Justices seem just and reasonable ". 17 In July 2003, the provisions of the Justices Act described above were replaced by the respective provisions of the Criminal Procedure Act. At the same time, the provisions of the Supreme Court (Summary Jurisdiction) Act and the Land and Environment Court Act, to which I have referred above, were replaced by the respective provisions of the Criminal Procedure Act. 18 In the prosecutor's submission, under both the Summary Jurisdiction Act 1848 and the Justices Act 1902, an order dismissing an information or complaint is a reference to a final order made after hearing the evidence and submissions. So too, according to the submission, the reference to an order dismissing a charge in s 253(1A) of the Criminal Procedure Act, is a final order made after hearing the evidence and submissions. The historical and jurisdictional context supports this conclusion. Dismissal of a charge is the completion of the proceedings commenced by the charge, entitling the defendant to a plea of autrefois acquit. 19 The prosecutor further submits that a stay is not a dismissal of a charge after a hearing, neither is a person having the benefit of a stay entitled to a certificate of dismissal. Rather, a stay is interlocutory and characterised as a refusal to exercise jurisdiction (citing Jago v District Court (NSW) (1989) 168 CLR 23 at 76, inter alia).

The defendants' submissions 20 Mr J M Ireland QC and Mr J B Maston, appearing for the defendants, submit that if s 253 of the Criminal Procedure Act is the only source of power to make an order for costs (now ss 257A to 257G), then a permanent stay is a final order in the sense that no further proceedings on the charges can be taken by the prosecutor, the charges cannot be pressed further, the charges can never be tried, the order has the effect of permanently terminating the prosecution, and the prosecution has been "dismissed" for the purpose of that section. 21 Mr Ireland relies upon the definition of "dismissal of proceedings" in the Butterworths Australian Legal Dictionary (1997): " An order for the termination of the plaintiff's action in favour of the defendant. The order is generally made in exercise of the court's inherent jurisdiction to prevent abuse of process ." 22 Mr Ireland also relies upon dictionary meanings of the word "dismiss":

The Shorter Oxford English Dictionary on Historical Principles (1973): "... 6. To have done with (a subject), bring to an end; hence to treat of summarily. 7 . Law a. To free or exclude oneself from a burden or advantage. b. To send out of court, reject (a claim or action)."

The Macquarie Dictionary , 2nd ed (rev) (1987): "... 6. to discard or reject. 7. to put off or away; lay aside, especially to put aside from consideration. 8 . to have done with (a subject) after summary treatment. 9 Law to put out of court, as a complaint or appeal." 23 Mr Ireland submits that the drafter of the section has clearly used a more general word rather than narrower specific words such as "acquit" or "discharge", so that the effect is to mean to dismiss a charge out of court, including the notion of an order which permanently stays a prosecution.

The statutory power does not apply in this case 24 I accept the force of the prosecutor's submissions noted in pars [6] to [19] above; that is, that the historical context of the predecessor provisions shows that an order for costs may be made upon a dismissal of a charge after a full hearing of the matter and that dismissal of a charge is the completion of the proceedings entitling the defendant to a certificate of dismissal and the benefit of a plea of autrefois acquit. 25 I find that the question of whether the statutory power applies is nicely balanced. The strongest argument in favour of the application of the statutory power to a permanent stay of a prosecution seems to be as follows. Although a permanent stay means that there has been no hearing of the evidence relating to the charge, its effect is the same as a certificate of dismissal otherwise entitling the defendant to a plea of autrefois acquit. The prosecution is effectively terminated and if a fresh prosecution was to be brought upon the same facts giving rise to the prosecution that has been permanently stayed, then it too would be permanently stayed as either an abuse of process or res judicata. That is, a permanent stay has the same operation as a dismissal of the charge. I thus acknowledge the force of the submissions of counsel for the defendants at pars [20] to [23] above. 26 I find, however, that despite these considerations, the authorities are to the contrary and show that the statutory power to make an order for costs does not extend to the making of an order for a permanent stay of a prosecution. 27 In Ward v Hodgkins [1957] VR 715, Herring CJ had to consider certain provisions of the Justices Act 1928 (Vic) relating to the grant of a certificate of dismissal. Section 88(17) of that Act stated, inter alia: " If the court dismisses such information complaint or set-off or counterclaim, such court shall make an order for dismissal of the same, and shall give the defendant ... in that behalf a certificate thereof ... if the same is demanded; which certificate without further proof shall upon its production be a bar to any other information complaint action or legal proceeding in any court... for the same matters respectively against the same party ." 28 The salient facts were that criminal charges brought in a court of petty sessions were dismissed for want of prosecution and the informations were dismissed and certificates of dismissal under s 88(17) of the Act were given to the defendant. Herring CJ thought it relevant to consider the history of the legislation on which s 88(17) of the Act was based. His Honour went back to the Summary Jurisdiction Act 1848 (UK), which previously operated in Victoria and which I have relevantly summarised at pars [11] to [13] above. As to this, Herring CJ said, at 724: " An examination of the form, content and language of s14 of [the Summary Jurisdiction Act] shews I think quite clearly that under that section certificates of dismissal could be granted to defendants only in respect of dismissals that followed upon a hearing and determination. In the first place it was only with dismissals of this kind that the section dealt; ... " 29 Herring CJ went on to hold, at 728, that certificates of dismissal could only be granted under s 88(17) in respect of dismissals after a hearing. The certificates of dismissal were thus not validly granted. 30 The judgment of Herring CJ in Ward v Hodgkins was followed and applied by the Full Court of the Supreme Court of Queensland in R v Hay; Ex parte Patane [1981] Qd R 152. 31 In R v Nicholl; Ex parte Webster (1979) 26 ACTR 19; (1979) 1 A Crim R 306, Blackburn CJ considered a provision of the Court of Petty Sessions Ordinance 1930 (ACT), s 244(1) of which stated: "(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions: (a) Where the Court makes a conviction or order in favour of the informant, it may in its discretion award and order that the defendant shall pay to the informant such costs as it thinks just and reasonable; (b) Where the Court dismisses the information, or makes an order in favour of the defendant, it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable ;" 32 A magistrate had ruled at a committal hearing that there was insufficient evidence to warrant the respondent being put upon his trial for an indictable offence. He added the words: "The charge is dismissed and the defendant is discharged.". After hearing counsel, the magistrate then purported to order that the prosecutor should pay the defendants' costs. 33 Blackburn CJ held, at 22 (ACTR) 309 (A Crim R), that the magistrate should not have said the words "the charge is dismissed". The Chief Justice said, at 21 (ACTR) 308 (A Crim R): " In this case, although the Court purported to 'dismiss the information', that was plainly ineffective. The magistrate was engaged in conducting a preliminary examination of a person charged with an indictable offence for the purpose of committal for trial, and not adjudicating upon the hearing of a charge ." 34 Blackburn CJ went on to hold, at 22 (ACTR) 308 (A Crim R): "... that dismissal implies an adjudication upon the issues between the informant and the defendant in a manner favourable to the defendant. The decision that the evidence is not sufficient to warrant the accused person's being put upon his trial for an indictable offence is certainly not an adjudicative order which determines the issues between the informant and the defendant,. .." 35 Blackburn CJ also held, at 22 (ACTR) 308 (A Crim R), that the magistrate should not have used the words "the charge is dismissed" and the fact that he did so provided no justification for an order for costs under s 244(1)(b) of the Ordinance. 36 In Walker v Baehnk (No. 2) (1987) 44 SASR 380, Legoe J considered s 133 of the Justices Act 1921 (SA), which stated: " A defendant who obtains an order of dismissal, or is convicted, under the provisions hereof, shall be released from all further or other criminal proceedings for the same cause ."

His Honour held that the word "dismissal" in s 133 meant a dismissal on the merits of the case. 37 These authorities, together with the historical background relied upon by the prosecutor, noted at pars [10] to [17] above, persuade me that the statutory power to make an order that the prosecutor pay the defendants' costs does not apply in the present case. That power is only enlivened following a dismissal of the charges on the merits of the case. Moreover, as Blackburn CJ has demonstrated in R v Nicholls; Ex parte Webster, unless there has been a determination on the merits of the case there is no power under the statute to make an order for costs. This conclusion is consistent with the authorities based on previous legislation in this Court, noted at par [8] above.

An inherent or implied power to order costs? 38 The defendants submit that the Court has an inherent or implied power to properly control and dispose of proceedings, including the making of orders for costs where appropriate. The defendants further submit that the general rule that costs will not be ordered in a criminal prosecution either in favour or against the prosecutor, absent any statutory power to do so, no longer applies. (Reference was made to R v Goia (1988) 19 FCR 212 and Latoudis v Casey (1990) 170 CLR 534.) 39 In Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13, Sheller JA (Powell JA concurring) held, at 28, that this Court, being a superior court, has an inherent jurisdiction, except to the extent that it is inconsistent with the particular statutory jurisdiction vested. Kirby P, however, preferred to reserve talk of inherent jurisdiction to the Supreme Court and the High Court entertaining appeals from it, and preferred the term implied jurisdiction (at 17). Kirby P also went on to say however, that "The foregoing distinction is doubtless elusive, perhaps metaphysical." Similarly, in R v JS (No. 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10, Spigelman CJ said, at [3], that it is usual to refer to a statutory court as having an implied jurisdiction. 40 In my view, this Court, as a superior court exercising a criminal jurisdiction, has the same jurisdiction whether it be called inherent or implied as that of other superior courts exercising a criminal jurisdiction, except to the extent that it is inconsistent with statute. 41 In R v JS, the Court of Criminal Appeal rejected an appeal from an acquittal by directed verdict in favour of the respondent. The respondent then made an application for an order for costs. The problem for the respondent was that s 17 of the Criminal Appeal Act 1912 provided that "on the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side". As to this, Spigelman CJ said, at [12], that this "reflects the basic proposition that the power to award costs in a criminal case requires statutory authority". The Chief Justice said, at [14]: "The traditional common law position that costs are not awarded in criminal proceedings is reflected in s 17 of the Criminal Appeal Act". I note, however, that there is no provision in the Criminal Procedure Act which is to the same effect as s 17 of the Criminal Appeal Act. 42 In Director of Public Prosecutions v Boykin (Supreme Court of New South Wales, 21 June 1994, unreported), Wood J held that although a Local Court magistrate has an implied power to stay criminal proceedings, since such a power is an essential attribute to the exercise of that Court's jurisdiction, "it does not inevitably follow that a power to order costs is associated with it", there being "no general or inherent power in the Local Court to make costs orders". Wood J held: " The absence of a general implied power to make costs orders, and the fact that a stay will itself largely redress the hardship suffered by a defendant faced with an abuse of process, leads me to the view that the relevant power to order costs against the DPP does not exist, as an implied power ". 43 In R v Goia (1988) 19 FCR 212, the respondent had obtained a permanent stay on an indictment and an order that the Crown pay his costs of the notice of motion for the stay. On appeal, the order for costs was set aside on the ground of the general rule as to costs in criminal cases that costs will not be awarded in favour or against the Crown. Forster and Pincus JJ saw no difference between interlocutory and final proceedings so far as costs are concerned. Miles J, dissenting, was of the view that the principle does not apply to an application to stay proceedings as an abuse of process, noting that the application had nothing to do with the guilt or innocence of Mr Gioa, and the exercise of the jurisdiction to grant a stay does not involve a determination "in a criminal cause or matter". 44 In Watson v Attorney-General (NSW) (1987) 8 NSWLR 685, the Court of Appeal, in the exercise of its supervisory jurisdiction, stayed a criminal proceeding that was pending in the District Court and awarded costs in favour of the successful applicant, the accused. The process in the Supreme Court in that case was not, however, a criminal proceeding, being a proceeding commenced by summons in the Court of Appeal. 45 In Markisic v Vizza [2002] NSWCCA 53, the Court of Criminal Appeal dismissed an appeal on the grounds that it was incompetent and that the Court of Criminal Appeal had no jurisdiction to hear the appeal. The respondents sought costs of the proceedings before the Court of Criminal Appeal. Stein JA (Dowd and Barr JJ concurring) said, at [28], that whilst s 17 of the Criminal Appeal Act provides that no costs shall be allowed on either side on the hearing or determination of an appeal, this does not mean that the Court of Criminal Appeal has no jurisdiction to make an order for costs. Stein JA continued, at [31] and [32]: "While the proceedings purport to be brought under the Act, they in fact were not so brought, and s17(1) has therefore no power to awarding costs of the court. The Court of Criminal Appeal has implied power to control abuse of its processes. This purported appeal from McClellan J is an abuse of process. It is an incident to such a power to control abuses of its processes that the court has implied (or inherent) power to order the applicants to pay the respondents' costs. See Darcey v Pre-Term Foundation Clinic (1983) 2 NSWLR 497 at 503; R v Barbaro (1992) 106 FLR 387 at 389; and Director General, Department of Community Services v Houdek [1999] NSWSC 1031. The dichotomy between implied and inherent powers matters not in this context." 46 Again, I find the parties' positions nicely balanced. I am inclined to the view, however, that the Court has an implied jurisdiction to award costs in the present circumstance. I have come to this view for the following reasons. 47 Firstly, in R v JS, Spigelman CJ acknowledged that the power to control proceedings for abuse of process is accompanied by the power to award costs except where the statute prohibits it. The Chief Justice said, at [6]: " As part of its implied jurisdiction this Court has power to control abuse of its process and, as an incident of that power, may order a person who has abused that process to pay the other party's costs, at least where s 17 of the Criminal Appeal Act does not apply ."

As I have noted, there is in the present case no statutory provision, such as s 17 of the Criminal Appeal Act , which says that no costs shall be allowed on either side - that is, there is no statutory provision which prohibits the power to award costs. 48 Secondly, I am bound by the judgment of the Court of Criminal Appeal in Markisic v Vizza, and in particular by the passages which I have quoted at par [45] above. The decision of the Full Court of Federal Court in R v Gioa is not binding upon me. In the latter case, the dissenting judgment of Miles J is more consistent with those of the Court of Criminal Appeal in R v JS and Markisic v Vizza. The present proceedings did not involve a hearing and determination of the proceedings as required by s 253 of the Criminal Procedure Act, so that the practice that the Crown does not seek or incur costs in criminal cases does not apply. 49 Thirdly, I reject the submission of Mr D A Buchahan SC and Mr E G H Cox, appearing for the prosecutor, that the Court has no power in a criminal proceeding to order costs even where the Court rules on such things as motions to set aside subpoenas, absent any statutory authority to so order. This submission is contrary to authority. In Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, Hunt J held that in a summary criminal prosecution a magistrate had an inherent power to set aside a subpoena. His Honour then considered (at 503) s 81 of the Justices Act 1902, which permitted costs to be awarded against a defendant in favour of the prosecutor or complainant in the event of a conviction or order, and against the prosecutor or complainant in favour of the defendant in the event of an order of dismissal. His Honour held, however, that the inherent power of the magistrate carries with it the inherent power to award costs in relation to the application and "such an inherent power exists independently of, and is not necessarily to be implied only from, the statutory provisions conferring jurisdiction upon the court" (at 504). 50 This judgment has been followed and applied in R v Barbaro (1992) 108 ACTR 1; (1992) 106 FLR 387 per Miles CJ and in Director-General, Department of Community v Houdek [1999] NSWSC 1031 per Bell J. 51 Fourthly, in the present case, the presence of s 253 in the Criminal Procedure Act is a statutory expression by the legislature designed to abrogate the general practice of having the prosecution neither seeking costs nor having costs awarded against it in criminal proceeding. The absence of an express provision in the Criminal Procedure Act to the same effect as s 17 of the Criminal Appeal Act suggests that the courts' implied power to make orders for costs is otherwise unaffected. 52 Fifthly, the statement by Bignold J in Liverpool City Council v Hodge [2006] NSWLEC 21; (2006) 143 LGERA 261 at 266 that in the case of criminal proceedings, the statutory costs power creates the true boundaries of the power and those boundaries are not to be extended by recourse to concepts of inherent or implied judicial power, is a statement that must be seen in the context of an application for costs on an indemnity basis, whereas the statute itself specified the basis upon which costs are to be calculated. That is, Bignold J was exercising the statutory power under s 253 of the Criminal Procedure Act after dismissing the summons for offences against the Environmental Planning and Assessment Act 1979. His Honour's determination has no bearing on the question which is now before me. 53 Sixthly, the purpose of the grant of a permanent stay is to prevent what would otherwise have been an abuse of the court process, and an order for costs in such circumstances is consistent with the Court of Appeal's decision in Watson v Attorney-General, noted at par [44] above, and the Court of Criminal Appeal's decision in Markisic v Vizza, noted at par [45] above.

Should an order for costs be made in the exercise of the Court's discretion? 54 The motions for a permanent stay having been successful, it would normally follow that costs would follow the event. That is, there should be an order that the prosecutor pay the defendants' costs of the notices of motion. 55 A more difficult question is whether the defendants are entitled to any costs associated with the principal proceedings. The defendants submit that it would be fair and reasonable that the prosecutor should also pay the defendants' costs for the period from the date of filing of the notices of motion, 13 February 2009, until the date of delivery of the reserved judgment on the motions, 6 April 2009 - which was also the date fixed for the commencement of the trial. 56 The prosecutor submits that there should be no order for costs, but if any order for costs is to be made, it should be limited to the costs of the notices of motion, principally because the costs of preparation for the trial were necessarily incurred as a result of the late filing of the notices of motion, some three years and two months after the commencement of the proceedings and after the prosecutions had been set down for hearing. 57 In the light of the prosecutor's submission it is necessary to have regard to the long history of the proceedings. The prosecutions were commenced by summonses filed as long ago as 9 December 2005. Thereafter, there was a succession of contested interlocutory proceedings - principally, Director-General Department of Planning v Epacris Pty Ltd [2006] NSWLEC 306; (2006) 147 LGERA 372; Epacris Pty Ltd v Director-General Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507; (2007) 153 LGERA 173; Director-General Department of Natural Resources v Gleeson [2007] NSWLEC 749 and, finally, Director-General Department of Environment and Climate Change v Gleeson [2009] NSWLEC 42; (2009) 165 LGERA 99 (the motions for a permanent stay). 58 As already noted, the notices of motion for a permanent stay were filed some three years and two months after the commencement of the proceedings and the reserved judgment on the motion was delivered on the first day that had been fixed for the trial, 6 April 2009. The defendants' solicitor, Mr McGirr, first raised what he saw as the injustice of the situation with his senior counsel when the proceedings were commenced, but it was not until late 2008 that he sought the formal advice of senior counsel as to whether a remedy was available. A formal advice by the defendants' senior and junior counsel is dated 29 January 2009, which states that grounds existed for an application for a permanent stay. The notices of motion were then promptly filed on 13 February 2009. 59 I accept the prosecutor's submission that it was not the prosecutor's fault that the defendants' solicitor did not seek counsel's advice until late 2008. It is no doubt for this reason that the defendants now seek only those costs of the principal proceeding which were incurred after 13 February 2009. 60 A consequence of the somewhat belated filing of the notices of motion was that it was not until the date fixed for the trial that the motions were determined, by which time the parties had necessarily expended considerable resources in preparing for the hearing. It is self-evident that none of these costs would have been incurred if the defendants had sought and obtained the advice of counsel earlier. In my view, the conduct of the prosecutor has been blameless and it has been put to considerable expense which would otherwise have been avoided if the notices of motion for a permanent stay had been brought on at an appropriately earlier stage in the proceedings. In these circumstances it is appropriate that the costs should be limited to the costs of the notices of motion. Orders 61 In my opinion, the appropriate order would be that the prosecutor pay the defendants' costs of the notices of motion for a permanent stay filed on 13 February 2009. 62 At Mr Buchahan's request, however, I grant a short adjournment before making these orders in order to afford him the benefit of these reasons with a view to considering whether to apply for a stated case for the opinion of the Court of Criminal Appeal on the subject. The proceedings will be listed before me at 9:30 am on 15 December 2009 for either the making of final orders or for the making of an application for a stated case. I hereby certify that the preceding 62 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.