Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd - [2003] NSWLEC 156

Reported Decision: 128 LGERA 287

Land and Environment Court

of New South Wales

CITATION: Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 156

PARTIES:
PROSECUTOR
Environment Protection Authority
DEFENDANT
McConnell Dowell Constructors (Aust) Pty Ltd

FILE NUMBER(S): 50009 of 1999

CORAM: Pearlman J

KEY ISSUES: Costs :- class 5 - no disentitling conduct - no reduction in costs

LEGISLATION CITED: Clean Waters Act 1970 s 16(1)
Land and Environment Court Act 1979 s 52

CASES CITED: Australian Conservation Foundation and Ors v Forestry Commission of Tasmania and Ors (1988) 76 LGRA 381;
Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552;
Cretazzo v Lombardi (1975) 13 SASR 4;
Donald Campbell & Co v Pollak (1927) AC 732;
Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70;
Environment Protection Authority v Shell Co of Australia (2001) 113 LGERA 463;
Latoudis v Casey (1990) 170 CLR 534;
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127;
Owen v Willtara Construction Pty Ltd (Bignold J, NSWLEC, 11 December 1998, unreported)

DATES OF HEARING: 20/06/2003

DATE OF JUDGMENT:
06/30/2003

LEGAL REPRESENTATIVES:

PROSECUTOR
Mr D A Buchanan SC
SOLICITORS
Environment Protection Authority
DEFENDANT
Mr J L Glissan QC and Mr G B Newport (Barrister)
SOLICITORS
Doyles

JUDGMENT:

50009 of 1999

Pearlman J
30 June 2003

ENVIRONMENT PROTECTION AUTHORITY

Prosecutor

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD

Defendant

Judgment

Introduction

1 The defendant successfully defended a charge that it had polluted water contrary to s 16(1) of the Clean Waters Act 1970. In a judgment delivered on 31 March 2003 (Environment Protection Authority v McConnell Dowell Constructors (Aust) Pty Ltd [2003] NSWLEC 70) (“the primary judgment”), I held that the prosecutor had not established the guilt of the defendant to the criminal standard of proof.

2 As the prosecutor had requested, the proceedings were stood over to allow the prosecutor to consider its position before formal orders acquitting the defendant were made.

3 The parties have now appeared to argue the question of costs. The defendant seeks an order dismissing the proceedings and makes a formal claim for its costs on the basis that, as the successful party in the proceedings, it could expect an award of costs in its favour. The prosecutor claims that the defendant should receive part only of its costs.

The prosecutor’s case

4 Mr Buchanan SC, appearing for the prosecutor, submitted that it would not be fair (nor just and reasonable) to order the prosecutor to pay all of the defendant’s costs. He contended that the proceedings were unreasonably prolonged by the way in which the defence was conducted. He said that this is demonstrated by identification of the issues which were put in dispute by the defendant and upon which the defendant failed. Relying upon a detailed affidavit by Mr C S F McElwain, the solicitor in the employment of the prosecutor…

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.

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Details

Case: [2003] NSWLEC 156
Decision Date: 06/30/2003

CaseChat Overview and Summary

The Environment Protection Authority prosecuted McConnell Dowell Constructors (Aust) Pty Ltd in the Land and Environment Court of New South Wales for contravening s 16(1) of the Clean Waters Act 1970. The court dismissed the charge against the defendant, finding that the prosecutor had not proved the defendant's guilt beyond reasonable doubt. The parties now dispute the costs of the proceedings, with the defendant seeking its full costs as the successful party and the prosecutor seeking a reduced award. The court considered the prosecutor's arguments for reducing the defendant's costs, including the defendant's conduct in the proceedings and its failure on certain issues. However, the court found that the prosecutor's arguments were misplaced and that the defendant's conduct did not warrant a reduction in costs. The court held that the defendant was entitled to its full costs as the successful party. The court made final orders dismissing the charge against the defendant and requiring the prosecutor to pay the defendant's costs.

The key legal issues in the case were whether the defendant's conduct warranted a reduction in its costs and whether the court should award the defendant its full costs as the successful party. The court considered the general principles governing the award of costs in criminal proceedings, including the broad discretion of the court and the purpose of a costs order to compensate the successful party. The court held that the defendant was entitled to its full costs as the successful party and that the prosecutor's arguments for reducing the defendant's costs were misplaced. The court found that the defendant's conduct did not warrant a reduction in costs and that the defendant was entitled to its full costs as the successful party. The court made final orders dismissing the charge against the defendant and requiring the prosecutor to pay the defendant's costs.

Orders