Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292

Reported Decision: 181 LGERA 352

New South Wales Court of Criminal Appeal

CITATION: Southon & Ors v Gordon Plath on behalf of the Department of Environment and Climate Change [2010] NSWCCA 292

HEARING DATE(S): 5 July 2010

JUDGMENT DATE: 10 December 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 81; Johnson J at 81

DECISION: The appeal is dismissed.

CATCHWORDS: COSTS – costs of accused in criminal proceeding – Criminal Procedure Act 1986, s 257C – whether costs may be awarded to accused following withdrawal of prosecution - COSTS – costs of accused in criminal proceeding – Criminal Procedure Act 1986, s 257D (1)(c) – whether prosecutor failed to properly investigate a relevant matter - APPEAL – Criminal Appeal Act 1912, s 5AB – whether trial judge erred in refusing to make costs order following withdrawal of prosecution - APPEAL – exercise of discretion – House v R [1936] HCA 40, 55 CLR 499 – whether decision of trial judge fell outside the bounds of a sound discretionary ruling

Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 National Parks and Wildlife Act 1974 Threatened Species Conservation Act 1995

CATEGORY: Principal judgment

Fosse v DPP [1999] NSWSC 367 Gales Holdings Pty Limited v Tweed Shire Council [2008] NSWLEC 209 CASES CITED : House v R [1936] HCA 40; 55 CLR 499 Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402 Weal v Bathurst City Council & Anor [2000] NSWCA 88; (2000) 111 LGERA 181

Donald Esmond Southon (First Appellant) PARTIES: Brian George Hockey (Second Appellant) Glen David Vurlow (Third Appellant) Gordon Plath on behalf of the Department of Environment and Climate Change (Respondent)