Riverina Seeks its Additional Costs Occasioned by the Granting of the Stay
21Consequent upon the Court granting the EPA a stay of the proceedings pending the final determination of the stated case by the Court of Criminal Appeal, Riverina applied for its costs thrown away occasioned by the adjournment, albeit by way of the stay.
22The Court has a discretion under s 257F of the CPA to order a party to pay costs if a matter is adjourned. That provision provides as follows:
257F Costs on adjournment
(1) A court may in any proceedings under this Part, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.
(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.
(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings.
(4) An order may be made whatever the result of the proceedings.
23Section 257F of the CPA applies to the Court (see s 170 of the Act).
24In support of its application for a costs order, Riverina relied on an affidavit of Ms Samantha Daly, affirmed 9 December 2014. Ms Daly is the solicitor for Riverina. The salient unchallenged evidence of Ms Daly was that:
(a)there was a slight delay by the EPA in providing the particulars requested by Riverina on 15 May 2014. A response was received by Riverina on 2 June 2014. The contents and significance of that reply have been parsed in Riverina;
(b)as early as 15 August 2014, the EPA was put on notice, through Riverina's s 247K Notice, that the duplicity in the summons was an issue. This notice was repeated on 21 August 2014, when Riverina wrote to the EPA enclosing an estimate of trial length that included two days for "opening submissions and objections, argument on Duplicity and Uncertainty of Summons and definition of 'pollutant'". The controversy was again referred to on 27 August 2014, when Riverina served the EPA with an amended s 247K Notice. In that Notice, the issue of the duplicity of the summons arising from "the particularisation of the 'Manner of contravention'" was explicitly mentioned; and
(c)on 4 December 2014, prior to the Court handing down its decision in Riverina, the EPA wrote to Riverina stating that it was "very likely (subject to consideration of her Honour's judgment)" that the prosecutor would ask the Court to stay a case to the Court of Criminal Appeal on the question of duplicity. It noted, however, that these instructions could not be confirmed until the transcript of the Court's ex tempore judgment was available.
25On 19 November 2014, when the matter came before the Court for a pre-trial conference, as was referred to in Riverina (at [5]-[9]) no mention of duplicity was raised by the parties before the Court. Hence the Court made orders for the filing and serving by the parties of their outlines of legal issues prior to the commencement of the hearing. In particular, the EPA was ordered to file and serve its outline of legal issues by 27 November 2014, and Riverina was ordered to file and serve its outline of legal issues the next day. The reason for the truncated timetable was because the previous orders of the Court made on 22 August 2014 had not been complied with. The orders were made by consent and were complied with by the parties.
26The allegation of duplicity was addressed by the EPA in its outline of legal issues. In particular, one of the issues that the EPA anticipated would arise was whether it was open to it to rely on alternative particulars as to the manner of contravention described in paragraph 1(c) of the particulars to the summons. Specifically the EPA submitted that:
The prosecutor also contends that alternative or cumulative allegations as to the circumstances that make the act unlawful do not make the Summons bad for duplicity or uncertainty: as to which, see for example Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403.
27The reference to the decision of Pace Farm Egg Products Pty Ltd v Newcastle City Council [2006] NSWCCA 403; (2006) 151 LGERA 260 in the EPA's outline of legal argument must be taken to be an implicit reference to s 257 of the POEOA. The EPA did not argue to the contrary before me.
28It is against this background that Riverina's costs application falls to be determined.
29As s 257F(2) states, a costs order may only be made if the Court is satisfied, as a threshold determination, that Riverina, first, has incurred additional costs, and second, has done so because of the unreasonable conduct or delays of the EPA.
30Although a matter of common sense, Ms Daly nevertheless deposed in her affidavit to the fact that if the proceedings were stayed, there would be a duplication of some preparation costs already incurred by expert witnesses, solicitors and the counsel for Riverina, in addition to the preparation for the trial, which had already commenced and which would need to be repeated or refreshed prior to the adjourned hearing recommencing. The extent of the duplication would not, however, be known until after the conclusion of the adjourned hearing when such costs could be assessed (an order for costs may be made in these circumstances pursuant to s 257F(3) of the CPA because the provision provides for the determination of the amount of costs payable at the end of the proceedings). There can be no doubt, therefore, that Riverina has incurred additional costs as required by s 257F(2).
31As a result, the debate between the parties became whether or not the additional costs incurred by Riverina were "because of the unreasonable conduct or delays" of the EPA.
32A preliminary issue arose as to whether or not the adjective "unreasonable" qualified both the conduct and the delay of the EPA or, as was submitted by Riverina, merely the EPA's conduct, and therefore, that any delay on the part of the EPA would engage the Court's discretion to award costs.
33Riverina relied on the decision in Environment Protection Authority v Buchanan (No 2) [2009] NSWLEC 31; (2009) 165 LGERA 383 to assert that it was sufficient if the EPA was responsible for the delay giving rise to the additional costs burden suffered by it. In that case, Pain J stated that (at [109]):
109 The chronology identified in the solicitor's affidavits does not suggest any greater fault by one party than the other in achieving the finalisation of the SOAF. I do not agree with the prosecutor's submission that there was obviously delay on the defendant's part given the lengthy SOAF which had to be negotiated and the uncertainty about whether additional evidence should or could be relied on by the prosecutor. Costs when ordered are compensatory; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. I have discretion in how costs ought be awarded under s 257F, provided I make any order judicially. I consider each party should pay its costs of the vacation in light of the circumstances giving rise to the vacation.
34The absence of any reference to "unreasonable" delay on the part of the defendant in Buchanan (No 2) was said by Riverina to provide support for its contention.
35But in my opinion, this is a misreading of her Honour's reasons. As is apparent from paragraph [100] of Pain J's judgment, the application by the prosecutor for an order that the defendant pay its costs was, consistent with the language in s 257F(2) of the CPA, premised on the "unreasonable delays" of the defendant. It is this application that the Court addressed and determined in Buchanan (No 2). Implicit in the reasoning of Pain J contained at paragraph [109] is a consideration of unreasonable delay on the part of the defendant in that case, and not mere delay. At best, the case is neutral in the assistance it provides Riverina.
36Neither the text nor the context of s 257F(2) of the CPA justifies the construction contended for by Riverina. An ordinary natural reading of the provision leads inexorably to the conclusion that the delay must be unreasonable, just as the conduct must be unreasonable, in order to enliven the Court's power to award costs. Were it otherwise, it may be expected that the legislature would have inserted a comma after the word "conduct". There can be no objective intention discerned that the Court should be permitted to award costs against a party for delay that was not of its own making or over which it had no control, the logical corollary of Riverina's submission. Not all delay has its genesis in the fault of a party. Rather, the provision is clearly directed towards disentitling conduct and disentitling delay by a party, or in other words, unreasonable conduct and disentitling delay.
37In any event, for the reasons that follow, and save for one exception, I do not find that the EPA engaged in any conduct or delay, unreasonable or otherwise, that could justify the exercise of my discretion to award costs against it in respect of the adjournment of the proceedings consequent upon the granting of a stay.
38The unreasonable conduct or delay relied upon by Riverina was the delay by the EPA in stating a case when, according to Riverina, the EPA had always intended to do so upon it becoming apparent that it was unlikely to succeed in refuting Riverina's claim that the summons was duplicitous. This intention should have been disclosed much earlier. Riverina relied, in particular, on the EPA's letter dated 4 December 2014, disclosing that the EPA was contemplating stating a case if the Court found in Riverina's favour on the duplicity argument.
39Riverina also complained about the revelation by the EPA, as early as the first day of the hearing on 1 December 2014, that it conceived the argument as to duplicity as a test case in relation to the scope of s 257 of the POEOA. In other words, from the outset the EPA contemplated taking the course it ultimately took, a position that again should have been communicated to Riverina earlier than it was. As proof of this intention, Riverina relied on the following exchange (T43.42-44.29):
ENGLAND: Your Honour, just before my learned friend moves in, might I ask a question about timing? And I ask, in no way to be disrespectful, but merely to juggle a lot of witnesses coming, flying from up north, I understand that my learned friend may well go to 4.00 today. The response that I put on will depend, of course, on my instructions in particular about the 257 issue. It's an important issue and I would beg your Honour's indulgence to have a day to take instructions and get submissions on and then resume again on Wednesday morning. Assuming, and I don't say your Honour will agree to that, but assuming your Honour does agree to that, it would certainly help us with the witness arrangements if we could start again either on Friday or on Monday, depending on--
HER HONOUR: Why don't we just see how we go. It may be unnecessary; you may get instructions that mean that it's so unnecessary, and it depends on, as you said, on when Mr Ireland finishes. I rather understood that he was getting fairly close. We just have to deal with a remaining few cases in relation to what I call the method of pollution, and then we just turn to the question of the pollutant, and what constitutes a pollutant.
ENGLAND: All right, we'll see how we go, then.
HER HONOUR: I mean, at this stage, and not having had the benefit of hearing, obviously, from you, or reading what you may put on to the Court, it seems there's a fairly easy way out of this.
ENGLAND: There's certainly a practical way out, your Honour.
HER HONOUR: There is a practical way out, and not very costly way out.
ENGLAND: I understand that, but I also need to act in accordance with my instructions and also policy and legal considerations.
HER HONOUR: Most definitely, but I'm not sure that this case necessarily is the best vehicle to make some new and exciting law in relation to the scope of deemed liability provisions under s 257.
ENGLAND: One has to ask, when is a case the right vehicle, but I hear what your Honour says and I'll renew my application if need be, later.
40In my opinion, Riverina's submissions are flawed for several reasons. First, and subject to the exception alluded to above, no real criticism may be made of the EPA's conduct to date. As the unsuccessful party, the EPA is entitled to state a case to the Court of Criminal Appeal in respect of the Court's findings on duplicity. It could not have done so any earlier than upon its receipt of the published ex tempore judgment on 8 December 2014. Its letter dated 4 December 2014 does no more than reflect this reality. It is difficult, if not impossible, to conceive of how the EPA could have signalled its intention to challenge any adverse decision on duplicity any earlier than it did. In my view, at all relevant times the EPA acted appropriately.
41Second, the costs thrown away by the adjournment occasioned by the grant of the stay was as a result of the delay by Riverina in bringing its application to strike out the summons on the grounds of duplicity. As stated in Riverina (at [5]-[9]) this application should have been brought prior to the first day of the hearing. Had that occurred, it is likely that no costs would have been wasted because either the matter would not have been set down for final hearing until such time as the Court of Criminal Appeal determined the stated case, or alternatively, the hearing dates could have been vacated in a more timely manner. The Court therefore has limited sympathy for the plight that Riverina now finds itself in. In short, there is no conduct or delay, reasonable or unreasonable, that would warrant the exercise of the Court's discretion to order costs against the EPA as sought by Riverina.
42The one exception, referred to above, is the cost of the second day of hearing, namely, 2 December 2014. Riverina submits that at the very least the EPA should pay its costs thrown away due to the necessity to grant an adjournment of the proceedings that day in order to permit the EPA to respond to and obtain instructions in respect of Riverina's written and oral submissions on the question of duplicity.
43There is considerable force in this submission. In my opinion, the delay was unreasonable. The EPA ought to have been prepared to respond to Riverina's submissions on 2 December 2014. Although the EPA did not receive Riverina's outline of legal issues until 4pm Friday, 28 November 2014, the receipt was in accordance with the timetable that the EPA had consented to. Furthermore, the EPA was aware of the specific issue (it was referred to in the EPA's outline of legal argument filed and served on 27 November 2014). No cogent explanation was offered to the Court by the EPA as to why it was not ready to proceed on that day, or why instructions had not been sought earlier. To state that it was not until the receipt of Riverina's outline of legal argument on 28 November 2014 that the EPA became aware that the strikeout application would be proceeded with cannot in all seriousness be maintained in light of the notification by Riverina that an application would be made in August 2014. As stated in Riverina (at [7]), there was nothing preventing the EPA confirming this to be the case.
44The EPA should therefore pay Riverina's costs thrown away by the adjournment of the hearing on 2 December 2014.
45Finally, and for the sake of completeness, although Riverina has been unsuccessful in its primary submission that the EPA pay the entirety of the additional costs incurred by it occasioned by the granting of the stay, nothing in these reasons will prevent Riverina from applying for a cost order at the conclusion of the proceedings in the event that it can satisfy the elements contained in ss 257C and 257D of the CPA (Environment Protection Authority v Truegain Pty Ltd [2013] NSWCCA 204; (2013) 85 NSWLR 125 at [99]).