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2
Court of Criminal Appeal 16 September 2015

Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2)

[2015] NSWCCA 252

Other
APPEAL COSTS ANCILLARY ORDERS

Citation: Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252
Court: Court of Criminal Appeal, NSW
Date: 16 September 2015
Judges: Hoeben CJ at CL, Hall J, Garling J

Background

The Environment Protection Authority (EPA) had charged a company (the respondent) with offences under the Protection of the Environment Operations Act 1997. In the Land and Environment Court, the trial judge found the summons was bad for duplicity, meaning it improperly charged more than one offence in a single count. The EPA, as the prosecutor and appellant, referred two questions of law to the Court of Criminal Appeal (CCA) by way of stated case under s 5AE of the Criminal Appeal Act 1912.

The CCA answered both questions in the negative in its principal judgment delivered on 25 June 2015: see [2015] NSWCCA 16. This second judgment dealt only with the ancillary and consequential matters that followed, namely whether a remittal order was needed, who should bear the costs of the CCA proceedings, and whether the CCA could also order costs of the proceedings in the Land and Environment Court.

  • Whether a formal remittal order was necessary to return the proceedings to the Land and Environment Court following the CCA's answers to the stated case questions.
  • Whether the successful respondent was entitled to costs of the CCA proceedings.
  • Whether the CCA had power under s 5AE(2) of the Criminal Appeal Act 1912 to order costs of the proceedings in the Land and Environment Court below.

Decision

Remittal order: The Court observed that, as a matter of practice, remittal orders are not usually necessary after a case stated. Once the CCA answers the stated questions, the primary proceedings remain within the control of the referring court, which retains sufficient case management powers to resume and manage the matter. Where no error is established against the trial judge, there is no need to direct that proceedings continue "according to law." However, because both parties agreed a remittal order was appropriate, the Court made one in this case.

Costs of the CCA proceedings: The Court confirmed that the prohibition on costs orders in s 17(1) of the Criminal Appeal Act 1912 does not apply to stated cases. The respondent, as the successful party, was therefore entitled to its costs of the CCA proceedings. The EPA did not dispute that the power to award costs existed, but argued the general principle that costs follow the event should not apply. The Court rejected that argument and ordered the EPA to pay the respondent's costs of the appeal.

Costs of the proceedings below: The respondent sought an order from the CCA covering costs of the Land and Environment Court proceedings, arguing that s 5AE(2) conferred sufficiently broad power to make such an order. The Court disagreed. Section 257C of the Criminal Procedure Act 1986 governs the award of costs in criminal proceedings of this type in the Land and Environment Court, and that regime leaves costs in the discretion of the trial judge. The CCA declined to exercise any power that would effectively strip the trial judge of that discretion before the proceedings had concluded.

Orders Made

  • The proceedings be remitted to the Land and Environment Court of New South Wales.
  • The EPA is to pay the costs of the respondent, Riverina Australia Pty Ltd, of the proceedings in the CCA.

Key Takeaways

  • After a stated case, the CCA's jurisdiction is generally complete once it answers the referred questions. A remittal order is not ordinarily required because the referring court retains its own case management powers to resume proceedings.
  • Where no error by the trial judge is found in the stated case, there is no basis for directing the lower court to determine the matter "according to law."
  • The prohibition on costs orders in s 17(1) of the Criminal Appeal Act 1912 does not apply to stated case proceedings, and the ordinary principle that costs follow the event applies.
  • Costs of the proceedings in the court below remain a matter for the trial judge's discretion under the applicable statutory scheme (here, s 257C of the Criminal Procedure Act 1986). The CCA held it should not exercise any broader power under s 5AE(2) in a way that would pre-empt or remove that discretion.
  • A remittal order may still be made by the CCA where both parties consent, even in the absence of any strict necessity for one.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5AE, 17(1)
- Criminal Procedure Act 1986 (NSW), s 257C
- Protection of the Environment Operations Act 1997 (NSW), ss 120(1), 257

Cases
- Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 16 (principal judgment)
- Taylor v Environment Protection Authority (2000) 50 NSWLR 48
- Clyne v Wrigley (1980) 1 NSWLR 599
- Robinson v Woolworths Ltd [2005] NSWCCA 426
- Sasterawan v Morris (No 2) [2007] NSWCCA 341
- R v JS (No 2) [2007] NSWCCA 309
- Liverpool City Council v Maller Holdings Pty Ltd t/as Sydney Horse Transport [2014] NSWCCA 299
- 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
- Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36
- Latoudis v Casey (1990) 170 CLR 534