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

The Environment Protection Authority (EPA) appealed to the Court of Criminal Appeal in New South Wales against a decision of the Land and Environment Court (LEC) that had dismissed the EPA’s challenge to certain rulings. The EPA had initiated the principal proceedings by issuing a summons, which the LEC found to be duplicitous. Riverina (Australia) Pty Ltd, the respondent, successfully defended the challenge and sought costs for the appeal and the proceedings in the LEC. The appeal centred on the issue of whether the LEC had the authority to award costs for the proceedings below, given that the Court of Criminal Appeal had jurisdiction over the appeal itself.

The Court of Criminal Appeal considered whether it was appropriate to award costs for the proceedings in the LEC. It noted that the LEC had the power to award such costs under statutory provisions, but the Court of Criminal Appeal’s role was limited to determining the outcome of the appeal. The Court concluded that the LEC was entitled to award costs for the appeal, but the award of costs for the proceedings below was within the discretion of the LEC and subject to the statutory rules. The Court of Criminal Appeal found that it did not need to remit the case to the LEC to reconsider the costs, as the LEC had sufficient powers to manage its own proceedings. However, given that both parties had agreed to remit the case, the Court made a remittal order as per their agreement.

In its judgment, the Court of Criminal Appeal confirmed that the LEC was entitled to costs for the appeal, while the award of costs for the proceedings in the LEC remained at the discretion of the LEC. The Court did not see the need to remit the case for reconsideration of costs, as the LEC was capable of managing its proceedings. However, because both parties had agreed to remit the case, the Court made a remittal order in line with their agreement. The final orders of the Court of Criminal Appeal were that the LEC was entitled to costs for the appeal, while the award of costs for the proceedings below was left to the LEC's discretion. The case was remitted to the LEC for further proceedings as per the agreement of both parties.