New South Wales Court of Criminal Appeal CITATION : Birdon Dredging Pty Ltd v McDonagh on behalf of Council of Great Lakes [2001] NSWCCA 138 FILE NUMBER(S) : CCA 60625/98 HEARING DATE(S) : 18 October 1999 JUDGMENT DATE : 19 April 2001 PARTIES : Birdon Dredging Pty Ltd v Gerrard McDonagh on behalf of Council of Great Lakes JUDGMENT OF : Priestley JA at 1; James J at 1; Kirby J at 1 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : LEC 50057/97; LEC 50058/97 LOWER COURT JUDICIAL Bignold J OFFICER : COUNSEL : Appellant - J. Webster Respondent - B. Walker SC, I. Hemmings SOLICITORS : Appellant - Russell C. Byrnes, Surry Hills Respondent - Peter Rees, New Lambton Heights CATCHWORDS : Costs Courts Legislation Amendment Act 1997 LEGISLATION CITED : Criminal Appeal Act Land & Environment Court Act Environment Protection Authority v Leaghur Holdings Pty Ltd (1995) 87 LGERA 282 CASES CITED: J & A Brown & Abermain Seaham Collieries Ltd v Robertson [1980] 1 NSWLR 622 Latoudis v Casey (1990) 170 CLR 534 DECISION : Respondent/Prosecutor to pay the appellant/defendant's costs determined under s 52(2) of the Land & Environment Court Act. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CCA 60625/98 PRIESTLEY JA JAMES J KIRBY J Thursday, 19 April 2001 BIRDON DREDGING PTY LTD v McDONAGH on behalf of COUNCIL OF GREAT LAKES [NO 2] 1 THE COURT: When judgment was delivered in this appeal, it was noted that counsel for the appellant had told the court that in his submission the court had no power to make an order as to the costs of the appeal. The court therefore made no order as to the costs of the appeal but reserved liberty to the appellant to apply for some different costs order, should it be so advised. 2 Subsequently written submissions were filed for the appellant and in reply for the respondent. They dealt not only with the costs of the appeal, but also the costs of the proceedings before Bignold J, at first instance. 3 So far as the costs of the appeal were concerned, it was conceded for the appellant, that in light of s 17 of the Criminal Appeal Act the court indeed had no jurisdiction to award costs: see also J & A Brown & Abermain Seaham Collieries Limited v Robertson [1980] 1 NSWLR 622 at 626 and Environment Protection Authority v Leaghur Holdings Pty Limited (1995) 87 LGERA 282 at 290. It was not suggested that anything had happened since the decisions in those cases affecting their applicability to the present situation. 4 In regard to the costs of the proceedings before Bignold J, the appellant relied on s 52 of the Land & Environment Court Act to show that that court had had power to award costs in favour of the appellant had it found in the appellant's favour. 5 Counsel then relied on ss 5AA and 5AB of the Criminal Appeal Act for the proposition that this court has the same power to make a costs order concerning a first instance proceeding as the Land & Environment Court itself had. We accept that those provisions have that effect. 6 It was then submitted that this court should make the appropriate costs order rather than sending the matter back to the Land & Environment Court, "In order to save further expense and finalise the whole litigation". 7 At first instance Bignold J delivered his judgment convicting the defendant on 29 May 1998 and his judgment on costs on 18 September 1998. On those dates s 52 (as amended by Schedule 4 of the Courts Legislation Amendment Act 1997 No 47, proclaimed to commence on 9 March 1998) was as follows: " " 52 Judge may order payment of costs (1) Where a Judge: (a) convicts any person of an offence punishable in the summary jurisdiction of the Court, (b) makes an order dismissing the charge for any such offence, or (c) makes an order under se556A(1) of the Crimes Act 1900 in respect of any such offence, the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of an order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2). (2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined: (a) by agreement between the prosecutor and defendant, or (b) if no such agreement can be reached, in accordance with the regulations. " 8 Clause 7A was inserted in the Land & Environment Court Regulation with effect also from 9 March 1998. It provided that in the event of an order directing costs be determined under s 52(2), and no agreement between prosecutor and defendant, then the Court's registrar was to determine the costs. 9 The Courts Legislation Amendment Act 1998 with effect from 3 August 1998 added subsections (3) and (4) to s 52. Pursuant to these subsections, cl 7A of the Land & Environment Court Regulation was amended. The effect of these changes was that if an assessment of costs became necessary pursuant to subsections (1) and (2) of s 52, it was to be done by the proper officer of the Supreme Court in accordance with s 202 of the Legal Profession Act 1987. 10 It may be that a question will arise, if this court orders that the prosecutor pay the appellant's costs as may be determined under s 52(2), and the parties do not agree on the amount, whether the assessment should be made by the registrar of the Land & Environment Court, or the proper officer of the Supreme Court. However this possible question was not the subject of submissions by the parties, and it is not necessary to consider it in deciding whether to make the order under s 52(1) asked for by the appellant. 11 Costs orders in favour of successful defendants are regularly made by the Land & Environment Court, but a defendant may be deprived of an order in the kind of circumstances described by the High Court in Latoudis v Casey (1990) 170 CLR 534 at 570. One of these circumstances is that the defendant brought the prosecution on itself by its conduct. The respondent submitted that Bignold J was of that view in the present case, and opposed the appellant's application on that ground. 12 The respondent also raised the question whether the court, by not making any order in the appeal about the first instance costs, had determined finally that no order should be made. 13 We do not agree with the respondent's submissions. As to the latter, the time had not irrevocably passed before the matter could be raised; the court's jurisdiction had not come to an end, and although the court does not welcome late applications, the court had not decided the point against the appellant on the merits, and it does not seem unfair to consider it now. 14 As to the former submission, Bignold J's opinion was expressed in light of his view about the defendant's guilt. His opinion loses weight in light of this court's decision on appeal. 15 For the appellant, on this point, reliance was placed on the knowledge of the local Council officers of what the appellant was doing, without taking timely action. Bignold J was right in thinking this was irrelevant to the question of proof of the charge, but we agree with the appellant's submission that it is relevant to the question of costs. 16 We see no reason why an order should not be made in the appellant's favour in regard to the first instance proceedings. 17 Accordingly, in addition to our orders of 16 December 1999, we order that in proceedings No 55058 of 1997, the respondent Prosecutor is to pay the appellant defendant's costs determined under s 52(2) of the Land & Environment Court Act. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.