Mantel v Anstee and Anor. - [2001] NSWLEC 202

Reported Decision: 116 LGERA 269

Land and Environment Court

of New South Wales

CITATION: Mantel v Anstee and Anor. [2001] NSWLEC 202

PARTIES:
PROSECUTOR:
Mantel
DEFENDANTS:
Anstee and Anor.

FILE NUMBER(S): 50030; 50031 of 2001

CORAM: Bignold J

KEY ISSUES: Practice and Procedure :- Prosecutor seeking leave to withdraw charges of environmental offences-Defendant's application for costs in proceedings-Discretion on costs-Disentitling conduct by successful party.

LEGISLATION CITED: Costs in Criminal Cases Act 1967
Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979, s 52

CASES CITED: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214;
Environment Protection Authority v Bathurst City Council (1999) 89 LGERA 79;
Latoudis v Casey (1990) 170 CLR 534;
McEwen v Siely (1972) 21 FCR 131;
Owen v Willtara Constructions Pty Ltd (unreported 11 December 1998);
Philliponi v Leithead (1958) 76 WN (NSW) 150;
Regina v Phipps Ex parte Alton 1964 2QB 420;
Rex (McDonnell) v Tyrone Justices (1912) 2 IR 443;
The Queen - Dainer Ex parte Milevich (1988) 91 FCR 33

DATES OF HEARING: 7 June, 2001; Written submissions-26 June 2001 and 29 June 2001

DATE OF JUDGMENT:
08/31/2001

LEGAL REPRESENTATIVES:

PROSECUTOR
Ms C Schofield, Solicitor
SOLICITORS
Pike Pike and Fenwick
DEFENDANTS
Mr J Laucis, Barrister
SOLICITORS
BROCK PARTNERS

JUDGMENT:

IN THE LAND AND

Matter No. 50030 and 50031 of 2001

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

31 August 2001

B R MANTEL (ON BEHALF OF SOUTH SYDNEY COUNCIL)

Prosecutor

BARRY ANSTEE

First Defendant

BASSOAK PTY LIMITED

Second Defendant

JUDGMENT

Bignold J:

A. INTRODUCTION

1. In these two related class 5 proceedings alleging an offence against the s 125, Environmental Planning and Assessment Act 1979 (EP&A Act) committed by each of the Defendants between 1 April and 4 July 2000, two issues have been raised for adjudication in consequence of the announcement by the Prosecutor at the commencement of the hearing of the trial (agreed to be heard concurrently) that it did not wish to proceed with either prosecution, namely
(i.) the Prosecutor’s application to withdraw both proceedings in respect of each charge; and
(ii.) each Defendant’s application for costs in the proceedings.

2. The two issues are interrelated inasmuch as if the Prosecutor were given leave to withdraw the proceedings, the availability of the Court’s statutory power to order costs in response to each of the Defendant’s application for costs would be thrown into considerable doubt.

3. In these circumstances, it becomes imperative in the interests of justice to seek to harmonise the interplay of the two applications so that each may be fairly adjudicated upon the substantial merits.
B. THE INTERPLAY BETWEEN APPLICATIONS—(i) TO WITHDRAW CHARGES AND (ii) FOR COSTS ORDERS AGAINST THE PROSECUTOR

4. The Court’s power to order costs in class 5 proceedings is exclusively governed by s 52 of the Land and Environment Court Act 1979 (LEC Act), since the general costs power conferred by s 69 of that Act is expressly declared “not to apply to proceedings 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.

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Details

Case: [2001] NSWLEC 202
Decision Date: 08/31/2001

CaseChat Overview and Summary

The case of Mantel v Anstee and Anor. before the Land and Environment Court of New South Wales involved two related proceedings alleging environmental offences. The prosecutor sought leave to withdraw the charges, and the defendants applied for costs in the proceedings. The court had to determine whether the prosecutor could withdraw the charges and, if so, whether the defendants were entitled to costs. The court held that if the charges were withdrawn, the defendants' applications for costs would be defeated. Therefore, the court dismissed the charges and ordered the prosecutor to pay the defendants' costs, excluding those incurred in seeking "particulars" from the prosecutor. The court found that the defendants' conduct in the litigation caused unnecessary costs to be incurred, and thus they were not entitled to be compensated for those costs. The defendants were, however, entitled to be compensated for part of the legal costs and expenses they incurred in the proceedings up until the entry of pleas of not guilty.

Orders