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Court of Criminal Appeal 19 April 2001

Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes

[2001] NSWCCA 138

Other
COSTS

Citation: Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [2001] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 19 April 2001
Judge(s): Priestley JA, James J, Kirby J

Background

This was a supplementary costs judgment following an earlier successful appeal by an appellant company (the defendant) against its conviction in the Land & Environment Court. The prosecution had been brought by a council officer on behalf of a local council. After the Court of Criminal Appeal allowed the appeal in December 1999, the question of costs for both the appeal and the original first instance proceedings remained unresolved.

At first instance, the trial judge had convicted the defendant and made an adverse costs finding. The appeal court overturned the conviction, but deferred the costs question because counsel for the appellant initially submitted the court had no power to award costs of the appeal at all. Written submissions were later filed by both parties addressing costs at both levels.

  • Whether the Court of Criminal Appeal had jurisdiction to award costs of the appeal itself
  • Whether the Court of Criminal Appeal had power to make a costs order in respect of the first instance proceedings before the Land & Environment Court
  • Whether the respondent prosecutor's conduct, or the defendant's own conduct, warranted departing from the usual position that a successful defendant receives a costs order
  • Whether the court's earlier silence on first instance costs amounted to a final determination against the appellant on that question

Decision

On the costs of the appeal, the appellant ultimately conceded that the court had no jurisdiction to award those costs. This concession was consistent with section 17 of the Criminal Appeal Act and two earlier authorities confirming that position. The court made no order as to appeal costs.

On the costs of the first instance proceedings, the court found that sections 5AA and 5AB of the Criminal Appeal Act gave it the same power to make costs orders in respect of first instance proceedings as the Land & Environment Court itself had. Section 52 of the Land & Environment Court Act empowered that court to order a prosecutor to pay a defendant's costs where a charge was dismissed or the defendant succeeded. The Court of Criminal Appeal accepted it could exercise that power directly, rather than remitting the matter, in order to avoid further expense and finalise the litigation.

The court rejected the respondent's submission that its earlier silence on first instance costs had finally determined the matter against the appellant. The court's jurisdiction had not ended, no merits determination had been made against the appellant on this point, and it was not unfair to consider the application at that stage.

The court also rejected the respondent's submission that the defendant had brought the prosecution on itself. The trial judge's adverse view of the defendant's conduct had been formed in the context of a finding of guilt, and that finding had since been overturned on appeal. The court further noted that the local council officers had been aware of what the appellant was doing without taking timely action, which the court accepted was relevant to the costs question even if irrelevant to proof of the charge.

Orders Made

  • The respondent prosecutor is to pay the appellant defendant's costs of the first instance proceedings (No 55058 of 1997), to be determined under section 52(2) of the Land & Environment Court Act.
  • No order was made as to the costs of the appeal.

Key Takeaways

  • The Court of Criminal Appeal confirmed it has no jurisdiction to award costs of the appeal in proceedings of this kind, consistently with section 17 of the Criminal Appeal Act and established authority.
  • Sections 5AA and 5AB of the Criminal Appeal Act extend the Court of Criminal Appeal's power to make costs orders in respect of first instance proceedings, equivalent to the powers held by the original court.
  • A trial judge's adverse view of a defendant's conduct, formed in the context of a conviction that is later overturned on appeal, carries reduced weight when a superior court subsequently considers costs.
  • Conduct by a prosecuting authority that may be irrelevant to proof of a criminal charge can still be relevant to the exercise of discretion on costs.
  • The court's failure to make a first instance costs order at the time of its principal judgment does not, without more, amount to a final determination against a successful defendant on that question.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), ss 5AA, 5AB, 17
- Land & Environment Court Act (NSW), s 52
- Courts Legislation Amendment Act 1997 (NSW), Schedule 4
- Courts Legislation Amendment Act 1998 (NSW)
- Legal Profession Act 1987 (NSW), s 202
- Crimes Act 1900 (NSW), s 556A(1)
- Land & Environment Court Regulation, cl 7A

Cases:
- J & A Brown & Abermain Seaham Collieries Ltd v Robertson [1980] 1 NSWLR 622
- Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282
- Latoudis v Casey (1990) 170 CLR 534