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Court of Criminal Appeal 28 August 2019

Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2)

[2019] NSWCCA 202

Other
COSTS COSTS ORDERED TO SUCCESSFUL APPELLANT

Citation: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202
Court: NSW Court of Criminal Appeal
Date: 28 August 2019
Judge(s): Preston CJ of LEC, Davies J and Adamson J

Background

The Environment Protection Authority (EPA) brought proceedings in the Land and Environment Court against two respondents, a company and an individual. During those summary proceedings, the trial judge submitted questions of law to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912, a mechanism that allows a trial judge to refer legal questions upward for authoritative answers while the original proceedings remain on foot.

In the principal judgment delivered on 2 August 2019 ([2019] NSWCCA 174), the Court of Criminal Appeal answered 13 of the 15 submitted questions in favour of the EPA. A threshold question raised by the respondents was also resolved in the EPA's favour. The Court left two questions unanswered as unnecessary. As a result of those answers, the proceedings below were remitted for re-determination.

The EPA then filed a notice of motion seeking a costs order against the respondents in respect of the proceedings before the Court of Criminal Appeal. The respondents opposed the application, advancing six distinct grounds of opposition.

  • Whether the Court of Criminal Appeal has power to award costs in proceedings under s 5AE of the Criminal Appeal Act 1912
  • How the discretion to award costs under s 5AE(2) should be exercised where the Crown, as the party requesting the stated case, succeeded on the submitted questions
  • Whether double jeopardy principles are relevant to the exercise of the costs discretion in stated case proceedings
  • Whether any presumption operates against awarding costs to the Crown in stated case proceedings where the respondents had been found not guilty at trial
  • Whether it would be a perverse outcome to award costs against respondents who, had they been convicted and appealed, would have been immune from a costs order under s 17(1) of the Act

Decision

The Court confirmed its power to award costs under s 5AE(2), which empowers the Court to "make any such order or give any such direction to the court concerned as it thinks fit." This has been previously recognised to include costs orders (citing Taylor v EPA and Clyne v Wrigley). The power does not carry any presumption about how it should be exercised, nor does it require special reasons or special circumstances before a costs order is made.

The Court ordered costs in favour of the EPA on the straightforward basis that the EPA was the successful party and the respondents were unsuccessful. The Court characterised the costs order as compensatory, not punitive, and identified the outcome of the proceedings as a matter clearly connected to the litigation and therefore a proper basis for exercising the discretion.

The Court addressed each of the respondents' six objections in turn and rejected all of them. The absence of precedent for such an order did not preclude making one. Double jeopardy had no application in the costs context. No presumption operated against the Crown. The respondents' conduct was not the basis for the order, so its reasonableness was beside the point. Finally, the Court rejected the "perverse outcome" argument: the statutory bar on costs in s 17(1) of the Act applies only to conviction appeal proceedings under s 5AB, not to stated case proceedings under s 5AE, so the comparison was not apposite.

Orders Made

  • The respondents, Grafil Pty Ltd and Mr Mackenzie, are to pay the costs of the appellant, the Environment Protection Authority, of the proceedings in the Court of Criminal Appeal.

Key Takeaways

  • Under s 5AE(2) of the Criminal Appeal Act 1912, the Court of Criminal Appeal holds a broad discretion to award costs in stated case proceedings, including in favour of the Crown.
  • No presumption operates for or against any party in the exercise of that discretion; the power is to be exercised on grounds connected with the proceedings or the conduct of the parties.
  • Success in the proceedings is a legitimate and sufficient basis on which to exercise the costs discretion, consistent with the compensatory purpose of costs orders confirmed in Latoudis v Casey (1990) 170 CLR 534.
  • Double jeopardy principles do not inform the exercise of the costs discretion under s 5AE(2), even where the respondents had been found not guilty at trial and the proceedings would require re-determination.
  • The statutory bar on costs in s 17(1) of the Criminal Appeal Act 1912 applies only to conviction appeal proceedings under s 5AB and has no bearing on stated case proceedings under s 5AE.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5AB, 5AE, 17(1)

Cases
- Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 (principal judgment)
- Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426
- Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252
- Latoudis v Casey (1990) 170 CLR 534
- Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWLEC 71
- Clyne v Wrigley [1980] 1 NSWLR 599