Solicitors:
Office of Environment and Heritage (Appellant)
McCullough Robertson Lawyers (Respondent)
File Number(s): 2014/372934
Decision under appeal Court or tribunal: Land and Environment Court of NSW
Jurisdiction: Class 5
Citation: Environment Protection Authority v Riverina (Australia) Pty Ltd [2014] NSWLEC 190
Date of Decision: 05 December 2014
Before: Pepper J
File Number(s): 2014/50230
[2]
Judgment
HOEBEN CJ at CL: I agree with Hall J.
HALL J: The principal judgment in these proceedings was delivered on 25 June 2015: Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 16. This judgment considers the making of orders in relation to ancillary matters and costs.
These proceedings concerned a stated case by which two questions were referred to this Court from the Land and Environment Court of New South Wales for determination pursuant to s 5AE Criminal Appeal Act 1912. That section provides:
5AE Point of law stated during summary proceedings
(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the Industrial Relations Commission in Court Session in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.
(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.
The respondent has been charged with offences under s 120(1) of the Protection of the Environment Operation Act 1997
The questions referred to this Court arose from a finding by the Land and Environment Court (Pepper J) that the summons filed by the appellant, the prosecutor in the proceedings below, commencing proceedings against the respondent was bad for duplicity. The questions were:
1. Whether the Court erred in finding that the summons filed on 17 April 2014 was bad for duplicity because more than one offence had been charged in the one count of contravention of s 120(1) of the Protection of the Environment Operations Act 1997.
2. Whether, upon its proper construction, s 257 of the Protection of the Environment Operations Act 1997 obviates the need for the Prosecutor to provide the defendant with the essential details of the particular act, matter or thing alleged as the foundation of the manner of contravention of s 120(1) of the Protection of the Environment Operations Act 1997 contained in paragraph 1(c)(i) of the Summons.
Both of the stated questions were answered by the Court in the negative.
The Court granted leave to the parties to file and serve written submissions in relation to any ancillary or consequential matters including costs. The respondent, Riverina (Australia) Pty Limited, which may be taken to be the successful party in relation to the questions submitted to this Court (the appellant having failed to establish the contentions pursued by it), filed written submissions on 1 July 2015 and the appellant did so on 17 July 2015. The respondent filed further written submissions in reply on 23 July 2015. The parties are content to have the ancillary/consequential matters raised in the submissions determined on the papers.
Essentially there are three matters arising. The first is whether it is sufficient to make an order remitting the matter to the Land and Environment Court of New South Wales or whether an additional order should be made requiring the appellant/prosecutor to take steps to give effect to this Court's judgment. The second matter concerns the entitlement, if any, to the costs of the proceedings in this Court. The third matter is whether any costs order should be made in relation to the proceedings in the Land and Environment Court.
[3]
The First Issue: Order Remitting the Proceedings
The respondent in its written submissions filed 1 July 2015 stated:
2. Having regard to the answers to the Questions, the first consequential orders should be that:
(1) The Prosecutor is required to elect to either amend the Summons to delete particular 1c(i) or to remove the disjunctive "or" between 1(c)(i) and 1(c)(ii) within 14 days in lieu of which the Summon shall be deemed struck out in its entirety, and the charge the subject of the proceedings below dismissed.
(2) In the event the Prosecutor does so elect in accordance with Order 1 above, the proceedings are remitted to the LEC."
An alternative form of order proposed by the respondent was an order remitting the proceedings to the Land and Environment Court with a direction to the trial judge requiring the Prosecutor to elect to amend the Summons as referred to in 2(1) of the Respondent's Submissions (extracted in [2] above). The respondent submitted that it was in the interests of certainty to make the orders sought.
The appellant in reply submitted that the making of the proposed order 2(1) above (extracted in [8] above) is unnecessary because of the clarity of the answers to the stated case and the case management powers of the trial judge in the Land and Environment Court. The appellant submitted that an order simply remitting the matter was the usual course and such an order should be made.
In the circumstances of the present case, it is inappropriate for this Court to make any order as sought by the respondent in 2(1) of the Respondent's Submissions. Upon remittal of the proceedings, the trial judge below has appropriate case management powers to ensure that they reflect and accord with the outcome of this Court's judgment and the answers to the questions on the case stated. In the event of any non-compliance, the Land and Environment Court is in a position to give directions and if necessary order a stay of proceedings until there has been full and proper compliance with its directions.
Before determining the nature and form of orders to be made, I make the following observations as to the final disposition of case-stated proceedings. The exercise of the jurisdiction of a court upon a case stated is, apart from any costs orders or other ancillary orders, completed upon that court formulating its determination by way of answers to the questions stated. A consideration of recent cases stated to this Court demonstrates that remittal orders are not usually made. This appears to reflect the fact that, once questions that have been submitted have been answered, the primary proceedings remain within the control of the referring court: See e.g. Director-General, NSW Department of Industry and Investment v Mato Investments Pty Ltd [2014] NSWCCA 132; NSW Food Authority v Nutricia Australia Pty Ltd (2008) 253 ALR 133; Garrett v Freeman [2006] NSWCCA 278; Environment Protection Authority v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367.
In cases where error has been established by the answers given to questions submitted an order remitting the proceedings to the lower court to be determined "according to law" will be appropriate. In Liverpool City Council v Maller Holdings Pty Ltd t/as Sydney Horse Transport [2014] NSWCCA 299 error on the part of the trial judge was found and an order by this Court remitting the proceedings was made. This was also the case in a stated case before the Full Bench of the Industrial Court of New South Wales in Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36.
In the present case, the Land and Environment Court proceedings, according to the submissions, were stayed pending the resolution of the principal proceedings in this Court. In circumstances as here, however, where no error has been established in answering the stated case on the part of the trial judge, it is not necessary, in my opinion, for a direction to be given that the proceedings be determined "according to law", the law having been correctly applied. The questions being answered, the Land and Environment Court proceedings can resume in accordance with that Court's case management powers.
Notwithstanding the practice referred to in [12], as both parties have proposed that a remittal order be made there is no obstacle to such an order being made in the present proceedings.
[4]
Costs of these Proceedings
The respondent submitted that a costs order should be made in its favour in relation to the costs of the stated case. It was contended by the respondent that there is a power to award costs despite the prohibition on costs orders as stated in s 17(1) of the Criminal Appeal Act 1912. That prohibition, it was submitted, does not apply to a stated case: see Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [38]. The respondent also relied upon Clyne v Wrigley (1980) 1 NSWLR 599; Robinson v Woolworths Ltd [2005] NSWCCA 426 at [55]-[57]; Sasterawan v Morris (No 2) [2007] NSWCCA 341 at [5]).
The appellant/prosecutor does not dispute that a power to award costs exists. It submitted, however, that the general rule that costs should follow the event, which would result in a costs order being made against it in this case, does not apply (R v JS (No 2) [2007] NSWCCA 309 at [12] and [19] relying on Latoudis v Casey (1990) 170 CLR 534 at 557). It argued that in those cases where there has been an award of costs, "the court has mentioned special reasons for doing so": see Taylor v Environment Protection Authority at [40].
The appellant submitted that there are no special reasons for the power to be exercised in favour of the respondent in this case. It also contended that there are "strong discretionary grounds for declining to order costs in the particular circumstances of this case". These were said to include the fact that the meaning of s 257 of the PoEO Act was a question of broad public interest which had not previously been conclusively determined; the fact that s 257 has frequently been relied upon in pleadings; that despite the appellant being unsuccessful, their stated case raised "significant questions of law that were appropriately tested"; and that there was no criticism by this Court of the formulation of the stated case.
In reply, the respondent submitted that there is no requirement for there to be "special reasons" for the making of a costs order and that such a requirement would be inconsistent with authority in Latoudis v Casey, supra. The respondent also relied upon Robinson v Woolworths, supra at [59]. It submitted that the discretionary grounds relied upon by the appellant were "weak", in particular its contention as to the public interest aspect referred to in [18], stating "There is no public interest in the Prosecutor seeking to defend to the death a defectively drafted summons that was a quite conspicuous example of inadequate pleading".
A proper exercise of the discretion on costs in the circumstances of this case is that the respondent, as the successful party, should be awarded the costs of the stated case proceedings determined by this Court. Whilst a requirement for "special reasons" to exist before the respondent may be awarded their costs is doubtful, the appellant's failure to amend the Summons when attention was brought to its defects in the proceedings below would be sufficient to constitute a "special reason" for awarding costs of the proceedings in this Court in favour of the respondent. There therefore exists a proper basis for concluding that the costs of the proceedings in this Court should be awarded in favour of the respondent.
[5]
Costs of the Proceedings Below
The respondent submitted that a costs order should be made in its favour in relation to the whole of the trial in the Land and Environment Court from its commencement to the date of the stated case to this Court (12 December 2014) apart from the costs of the adjournment of the proceedings which have already been dealt with by the trial judge below exercising her power under s 257F (EPA v Riverina [2014] NSWLEC 191). This was said to be because the proceedings below, until the date of the stated case, had been confined to argument about the duplicitous Summons and matters which eventually became the subject of the stated case. The respondent submitted that it will be unable to recover the costs in respect of the proceedings in the Land and Environment Court up until the date of the case stated unless they are successful in the remainder of the proceedings, in the sense that it avoids conviction for the offence or offences pleaded in any new or amended Summons, because the Land and Environment Court has no power to make a costs order of that type in their favour (by virtue of s 257C Criminal Procedure Act 1986). The respondent submitted that the terms of s 5AE(2) Criminal Appeal Act are broad enough, however, to allow this Court to make the order they seek.
The appellant submitted that to make an award for the costs of the proceedings below in the manner requested by the respondent would require the court to imply into s 5AE a power which does not otherwise exist. The appellant submitted:
9 Practically speaking, the effect of the Respondent's application in this regard would be to remove the trial judge's discretion to make appropriate costs orders in accordance with the relevant costs regime. The appropriate time for consideration of the costs of the proceedings below is when the proceedings have been concluded, save for those limited exceptions set out in Division 4. It is at that point that relevant questions of costs are appropriately considered, in the trial judge's discretion, having regard to the applicable statutory scheme and the conduct and outcome of the trial.
The appellant's submissions on this aspect should be accepted. It is true that s 257C limits the power of the Land and Environment Court to make costs orders. Sections 257C(1) and (3) provide for costs to be paid by a prosecutor if the proceedings are dismissed or withdrawn or the accused is discharged of the offence the subject of the proceedings. Nonetheless, s 257C governs the award of costs in criminal proceedings of this type. I am not persuaded that the power of this Court is broad enough to permit the making of such an order as sought by the respondent. In any event, even if there were power to award such costs, the matters referred to in [9] of the EPA's submissions set out above, operate against the making of the order sought.
Accordingly, no order should be made by this Court in regard to the costs of the proceedings below.
[6]
Orders
I propose the following orders under s 5AE(2) Criminal Appeal Act 1912:
1. The proceedings be remitted to the Land and Environment Court of New South Wales.
2. The appellant, the Environment Protection Authority, is to pay the costs of the respondent, Riverina Australia Pty Ltd of the proceedings in this Court.
GARLING J: I agree with the orders proposed by Hall J.
[7]
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Decision last updated: 16 September 2015