Warringah Council v Koch and Severino

[2006] NSWLEC 608

Land and Environment Court

of New South Wales

CITATION:	Warringah Council v Koch and Severino [2006] NSWLEC 608
PARTIES:	50070 of 2005 PROSECUTOR: Warringah Council DEFENDANT: Horst Koch 50071 of 2005 PROSECUTOR: Warringah Council DEFENDANT: Santo Angelo Severino
FILE NUMBER(S):	50070; 50071 of 2005
CORAM:	Biscoe J
KEY ISSUES:	Costs :- Class 5 proceedings – costs ordered in favour of successful defendants
LEGISLATION CITED:	Criminal Procedure Act 1986, s 253 Courts Legislation Amendment Act 2006, s 257D
CASES CITED:	Latoudis v Casey (1990) 170 CLR 534
DATES OF HEARING:	06/09/2006
EX TEMPORE JUDGMENT DATE:	09/06/2006
LEGAL REPRESENTATIVES:	PROSECUTOR: Mr P Vergotis, solicitor SOLICITORS Matthews Folbigg DEFENDANT: Mr M Baird, barrister SOLICITORS Wood Marshall Williams DEFENDANT: T Howard, barrister SOLICITORS Cara Marasco & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

6 September 2006

50070 of 2005

WARRINGAH COUNCIL v KOCH

50071 of 2005

WARRINGAH COUNCIL v SANTO ANGELO SEVERINO

JUDGMENT

:

1 This is an application for costs by the successful defendants in these two class 5 proceedings which were heard together. Section 253(1A) of the Criminal Procedure Act 1986 provides that:

A court may, if the court makes an order dismissing the charge for an offence, in and by that order, order the prosecutor to pay to the accused person such costs as the court specifies or, if the order directs, as may be determined under subsection (2).

2 Recently, significant restrictions have been imposed on the ordering of costs in favour of a successful defendant in proceedings of this type by s 257D of the Courts Legislation Amendment Act 2006, which commenced on 17 May 2006 and amended the Criminal Procedure Act 1986:

257D Limit on award of professional costs against a
prosecutor acting in a public capacity
(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.
(2) This section:
(a) does not apply to the awarding of costs against a prosecutor acting in a private capacity, and
(b) does not apply in relation to proceedings for an offence against the Occupational Health and Safety Act 2000, the regulations under that Act or the associated occupational health and safety legislation within the meaning of that Act.
(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.

3 However, that section does not apply to these proceedings because, by Schedule 2 cl 50 of the Criminal Procedure Act 1986, an amendment made to that Act does not extend to proceedings instituted before the commencement of the amendment. The proceedings with which I am dealing were both instituted before the commencement of the 2006 Act.

4 In the result, as I have said, s 253 of the Criminal Procedure Act 1986 applies to these proceedings. The normal principle, in the absence of disentitling conduct, is that costs follow the event: Latoudis v Casey (1990) 170 CLR 534. The prosecutor does not put anything in opposition to an order for costs in favour of the successful defendants.

5 Accordingly, in each of these matters, I order the prosecutor to pay the defendant’s costs as agreed or assessed.