Carter v Wall [No. 2] - [2003] NSWLEC 94

Reported Decision: (2003) 126 LGERA 310

Land and Environment Court

of New South Wales

CITATION: Carter v Wall [No. 2] [2003] NSWLEC 94 revised - 27/08/2003

PARTIES:
PROSECUTOR
Peter Carter
DEFENDANT
Verna Wall

FILE NUMBER(S): 50135 of 2001

CORAM: Cowdroy J

KEY ISSUES: Costs :- Class 5 proceedings - application pursuant to leave to apply in respect of costs - extent of judicial discretion under s 52 of the Land and Environment Court Act 1979 - whether court functus officio - whether s 6 of the Fines Act applies to s 52 of the Land and Environment Court Act 1979 - prosecutor's application for moiety of fine - failure to apply through inadvertence during hearing - application of slip rule.

LEGISLATION CITED: Courts Legislation Amendment Act 1997
Courts Legislation Amendment Act 1998
Fines Act 1996, s 3 (d), s 3(e), s 4, s 6, s 122
Fisheries Management Act 1994, s 205(2), s 277(1)(c)
Land and Environment Court Act 1979, s 21(gb), s 52, s 53, s 69
Land and Environment Court Regulation 2000, cl 8
Legal Profession Act 1987, s 202
Land and Environment Court Rules 1996, Pt 10 r 7

CASES CITED: Attorney General of the Commonwealth of Australia v The Queen and Others (1956) 95 CLR 529;
Carter v Wall [2002] NSWLEC 124;
Cristel v Cristel [1951] 2 KB 725 ;
Director-General Department of Land & Water Conservation v Pye (No 2) [1999] NSWLEC 45;
Environmental Protection Authority v Taylor (No 4) (2002) 120 LGERA 414;
Kirby and Others v The Queen and Others (1956) 95 CLR 529;
L. Shaddock & Associates Proprietary Limited and Another v The Council of the City of Parramatta [No 2] (1983) 151 CLR 590;
Roughley and Others v The State of New South Wales and Another (1928) 42 CLR 162;
The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1955-1956) 94 CLR 254;
Wentworth v Woollahra Municipal Council (Hutley, Glass, and Mahoney JJA, New South Wales Court of Appeal, 31 March 1984, unreported)

DATES OF HEARING: 17/04/2003

DATE OF JUDGMENT:
06/16/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms N. Sharp (Barrister)
SOLICITORS
Crown Solicitor
DEFENDANT
Mr J. Maston (Barrister)
SOLICITORS
Pickering Priestley

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

50135 of 2001

Cowdroy J

16 June 2003

PETER CARTER

Prosecutor

VERNA WALL

Defendant

Judgment

Introduction

1 By notice of motion filed 17 February 2003 (“the motion”) the defendant applied to the Court to re-list these proceedings pursuant to the liberty granted by the Court in its judgment delivered on 22 August 2002. Such liberty was confined to the issue of costs.

2 The purpose of the motion is to challenge the quantum of the costs which the prosecutor seeks to recover from the defendant.

History of the application

3 The defendant entered a plea of guilty to a charge brought against her under s 205(2) of the Fisheries Management Act 1994 (“the Fisheries Act”) for harming marine vegetation in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carter v Wall [No. 2]

Details

AGLC: Carter v Wall [No. 2] [2003] NSWLEC 94
Case: [2003] NSWLEC 94
Decision Date: 06/16/2003

CaseChat Overview and Summary

In the case of Carter v Wall, the defendant, Verna Wall, was convicted of harming marine vegetation in a protected area without a permit. The prosecution, represented by Peter Carter, a delegate of New South Wales Fisheries, sought costs from Wall as permitted under the Land and Environment Court Act 1979. Wall contested the quantum of the claimed costs, which were approximately $49,000, and sought to have the amount reduced. The primary legal issue before the court was whether the Fines Act 1996 applied to the assessment of costs in class 5 proceedings under the Land and Environment Court Act 1979.

The court found that section 52 of the Land and Environment Court Act 1979, which governs costs in class 5 proceedings, does not allow for judicial discretion in the determination of costs. Instead, costs are to be either agreed upon by the parties or assessed according to regulations. Consequently, section 6 of the Fines Act, which requires consideration of the defendant's means to pay, does not apply. The court reasoned that the legislature intended for the Fines Act to apply only to the enforcement of penalties and not to the assessment of costs, as evidenced by the explicit reference to the Fines Act in section 53 of the Court Act.

Furthermore, the court rejected the prosecutor's application for a moiety of the fine under section 122 of the Fines Act, finding that the slip rule did not apply to correct the prosecutor's oversight in not applying for the order at the conclusion of the hearing. However, the court did grant the prosecutor's subsequent motion for a moiety of the fine, applying the slip rule to correct the inadvertent omission.

Ultimately, the court confirmed the order for Wall to pay the prosecutor's costs as agreed or taxed, dismissed Wall's notice of motion, and ordered Wall to pay the prosecutor's costs for that motion. The prosecutor was also granted entitlement to a moiety of the fine payable by Wall, with each party to bear their own costs for the prosecutor's motion.

Orders