Director-General, NSW Department of Industry and Investment v Bennett

[2013] NSWLEC 24

Land and Environment Court

New South Wales

Medium Neutral Citation:	Director-General, NSW Department Of Industry & Investment v Bennett [2013] NSWLEC 24
Hearing dates:	Written submissions 15 December 2012
Decision date:	25 February 2013
Jurisdiction:	Class 5
Before:	Pain J
Decision:	Application seeking partial costs of costs hearing is refused
Catchwords:	Costs - claim by defendant for partial award of costs of costs hearing under Criminal Procedure Act 1986 and Costs in Criminal Cases Act 1967 in relation to multiple charges - certificate issued under costs in Criminal Cases Act in relation to one charge - exercise of discretion not to award costs as not successful party
Legislation Cited:	Costs in Criminal Cases Act 1967 Criminal Procedure Act 1986 s 98, s 257D Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 r 42.1
Cases Cited:	Director-General, NSW Department Of Industry & Investment v Coomes [2012] NSWLEC 251
Category:	Principal judgment
Parties:	Director-General, NSW Department Of Industry & Investment (Prosecutor) Bennett (Defendant)
Representation:	Mr T Howard (Prosecutor) Ms A Pearman (Defendant) Crown Solicitor's Office (Prosecutor) Neville & Hourne Legal (Defendant)
File Number(s):	50064-7 of 2009

Judgment

1. Following the dismissal of three charges (proceedings 09/50064 - 50066) against the Defendant Mr Bennett under the Fisheries Management Act 1994 (the FM Act) and one charge (proceedings 09/50067) under the Environmental Planning and Assessment Act 1979 (the EPA Act), Mr Bennett sought his legal costs of the criminal proceedings for all charges under s 257D of the Criminal Procedure Act 1986 (CP Act). In the alternative, a certificate under the Costs in Criminal Cases Act 1967 (CCC Act) was sought. Mr Bennett was unsuccessful in his costs claims under the CP Act in relation to the FM Act charges and the EPA Act charge. I did award a certificate under s 2 of the CCC Act in relation to the one charge under the EPA Act but not in relation to the three FM Act charges; Director-General, NSW Department Of Industry & Investment v Coomes [2012] NSWLEC 251. Mr Bennett seeks one quarter of his costs incurred in the costs motion for proceedings 09/50064-50067 or a proportionate order for proceedings 09/50067 (the EPA Act charge).

1. Section 257D(1) states that:

(1) Professional costs are not to be awarded in favour of an accused person in proceedings under this Part unless the court is satisfied as to one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

1. Mr Bennett's counsel submitted that as there are no special rules in relation to costs in Class 5 proceedings in the Land and Environment Court Rules 2007, s 98 of the CP Act is a useful guide and the award of costs is in the Court's discretion. The correct starting point is r 42.1 of the Uniform Civil Procedure Rules 2005 (the UCPR) that costs ought follow the event, here judgment in favour of Mr Bennett for the part of the proceedings in which he was successful in obtaining costs orders. Something out of the ordinary is required to justify departure from the general costs rule that costs follow the event. Mr Bennett should receive all his costs of defending the EPA Act charge. The Prosecutor produces no authority for the novel submission that costs cannot be awarded at all because of s 257D(1).

1. The Prosecutor opposed Mr Bennett's application. Firstly s 257D of the CP Act precludes the award of costs. Secondly, discretion should not be exercised in the terms sought in any event if costs can be awarded. The Court has determined that none of the circumstances under s 257D(1) apply to the prosecution of Mr Bennett and consequently he could not recover any costs under that section. The costs hearing formed part of the proceedings 50064-50067. That finding applies equally to the application for costs under the CCC Act as all applications were made in these proceedings.

1. In relation to the exercise of the Court's discretion, the Defendant Mr Bennett failed on 7 out of 8 applications for costs. He cannot reasonably be characterised as the successful party. The CCC Act application in proceedings 09/50067 should not be considered in isolation. The primary costs application in proceedings 09/50067 was under the CP Act, in which he was unsuccessful. All four proceedings were heard together and the Prosecutor was largely successful.

Consideration

1. It is unnecessary to determine if I have power to award costs in light of s 257D. Assuming I could award costs to Mr Bennett, I would decline to do so in the exercise of my discretion. The Prosecutor's characterisation of Mr Bennett's lack of success in the proceedings is accurate so that he cannot reasonably be characterised as the successful party. Matter 09/50067 must be viewed in the context of the overall number of offences the subject of the costs application. Mr Bennett was not successful in the substantive costs claim in those proceedings. Accordingly Mr Bennett's application seeking partial costs of the costs hearing is refused.

Decision last updated: 07 March 2013