Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Truegain Pty Ltd [No 3] [2012] NSWLEC 78 Hearing dates: 21/03/2012 Decision date: 18 April 2012 Jurisdiction: Class 5 Before: Lloyd AJ Decision: 1. Prosecutor to amend the summons as particularised by deleting the particulars to summons upon which it may no longer rely. 2. Prosecutor to pay the defendant's costs thrown away by reason of the amendment, such costs to include the following: (a) the costs of and incidental to the defendant's notice of motion filed on 20 February 2012; (b) the costs of and incidental to the defendant's amended notice of motion filed on 1 March 2012; and (c) the defendant's costs of 19, 20 and 21 March 2012. Catchwords: COSTS - criminal proceedings - finding that charge is bad for duplicity - whether there is jurisdiction to order costs Legislation Cited: Criminal Procedure Act 1986, s 17, s 170(3), 257C(1), s 257D(1)(d) Land and Environment Court Act 1979, s 41, s 68 Protection of the Environment Operations Act 1997, s 64(1) Cases Cited: Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552; 78 A Crim R 368 Director of Public Prosecutions v Cakici [2006] NSWSC 454 Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41 Environment Protection Authority v Truegain Pty Ltd [No 2] [2012] NSWLEC 55 Halpin v Department of Gaming & Racing [2007] NSWSC 815 Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 Wakool Shire Council v Garrision Cattle Feeders Pty Limited [2010] NSWLEC 199 Category: Costs Parties: Environment Protection Authority (Prosecutor) Truegain Pty Ltd (Defendant) Representation: M Higgins (Prosecutor) J Horowitz (Defendant) Patricia Lenehan (Prosecutor) Horowitz & Bilinsky (Defendant) File Number(s): 50471 of 2011 Judgment 1On 3 June 2011 the prosecutor filed a summons alleging that the defendant committed an offence against s 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of a licence a condition of which was contravened by a person. 2The defendant seeks an order that the prosecutor pay its costs of certain interlocutory proceedings, namely, a notice of motion (filed on 20 February 2012) for further particulars, amended on 1 March 2012 for an order that the charge be dismissed or otherwise stayed on the basis that it was duplicitous; and the costs of the hearing of the latter motion on 19 and 20 March 2012, together with the hearing of this application for costs on 21 March 2012. 3There are two questions for determination: (1) is an order for costs justified in the circumstances; and if so - (2) does the Court have jurisdiction to make an order for costs at this stage of the proceedings, that is, before the end of the proceedings. Is an order for costs justified in the circumstances? 4The defendant submits that it is just and reasonable that the prosecutor pay its costs because of the manner of the conduct of the proceedings by the prosecutor, prompting the need for the defendant to bring its notices of motion (in which it has been substantially successful). 5In order to determine the question it is necessary to have regard to the following chronology. 13 June 2011: Summons served on the defendant Summons returnable. The Court made the following directions: 29 July 2011: (1) Prosecutor to file and serve evidence on liability by 19 August 2011 and (2) the matter re-listed on 26 August 2011 (not, as Ms P Lenehan, the prosecutor's in-house solicitor, asserts in her affidavit, 16 September 2011.) 26 August 2011: Not all of prosecutor's evidence served - matter stood over to 16 September 2011 7 September 2011: Mr C Bilinsky, the defendant's solicitor, sent a letter to Ms Lenehan acknowledging receipt of the affidavit of Alan England, noting the prosecutor's intentions to file further affidavits and enquiring when the affidavit of Dr Wayne Davies may be expected. Mr Bilinsky had a telephone conversation with Ms Lenehan during which the following was said: 13 September 2011: Bilinsky: "We're having difficulty understanding what your case is. We will have to seek further and better particulars." Lenehan: "I suggest that you might wait to get Dr Davies' affidavit and that might clear up a lot of the matters." 13 September 2011: Ms Lenehan sent by email to Mr Bilinsky proposed Short Minutes of Orders vacating the mention on 16 September and the prosecutor to file and serve the affidavit of Dr Davies by 21 September 2011. The Court made orders by consent: 15 September 2011: (1) that the prosecutor file and serve the affidavit of Dr W Davies by 21 September 2011, and (2) matter adjourned to 30 September 2011. 30 September 2011: Mr Bilinsky informed the Court that the defendant wanted further particulars of the prosecution case. Mr Bilinsky sought an order for particulars, which was refused. The Court re-listed the matter for 7 October 2011. 7 October 2011: The defendant's counsel, Mr J Horowitz, again sought an order that the prosecutor provide particulars of the charge. Ms Lenehan advised the Court that she did not consent to the provision of further particulars. The Court declined to make the order. The Court then ordered, by consent, that the prosecutor serve a draft statement of agreed facts by 21 November 2011, and the defendant to respond to that draft by 21 December 2011. The matter was set down for hearing for two weeks commencing on 19 March 2012. 7 October 2011: The defendant's counsel discussed with Ms Lenehan the possibility of entering a guilty plea. 13 October 2011: Mr Bilinsky sent a letter to Ms Lenehan asking for oil samples collected by the prosecutor from in and around the defendant's premises to be made available, for an indication of the range of penalty that would be sought, and the amount of the prosecutor's costs and anticipated costs. 8 November 2011: Having read the evidence served by the prosecutor, including the affidavit of Dr Davies, Mr Bilinsky was still unable to properly understand the prosecutor's case and sent a letter to Ms Lenehan seeking further and better particulars. 6 December 2011: Mr Bilinsky sent a letter to Ms Lenehan noting that Pepper J had ordered the prosecutor to serve a draft statement of agreed facts by 21 November 2011, which had still not been received, that it was not possible to respond to the draft by 21 December 2011, and asking for an indication when it may be expected. 6 December 2011 Mr Bilinsky sent a further letter to Mr Lenehan, referring to the request for further and better particulars of 8 November 2011 and asking for the particulars to be provided as soon as possible. 7 December 2011: Ms Lenhan sent an email to Mr Bilinsky stating that she was preparing a response (to each letter of 6 December 2011), and a draft statement of facts would be completed shortly and that she would have a response to him by the following week. 14 December 2011: At 2.22pm Mr Bilinsky emailed a letter to Ms Lenehan voicing concern that the prosecutor had not complied with the timetable and noting that it was impossible for the defendant to comply with the timetable. 14 December 2011: At 6.26 pm the prosecutor emailed to Mr Bilinsky a draft statement of agreed facts comprising 254 paragraphs, and stated that the requested particulars had been covered in that draft. 14 December 2011: At 7.05 pm Ms Lenehan sent an email to Mr Bilinsky attaching a new set of orders and asking him to advise "before 11 am tomorrow" if the date for his response to the draft statement of facts by 10 February 2012 is ample. 16 December 2011: The Court made orders by consent amending the timetable. Mr Bilinsky had not had an opportunity to read the draft statement of agreed facts by then and consented to the orders on the assumption that it answered the defendant's request for particulars, as stated by Ms Lenehan in her first email of 14 December 2011. 19 December 2011: Mr Lenehan replied to Mr Bilinsky's letter of 13 October 2011. 7 February 2012: Having read the draft statement of agreed facts and sought advice from counsel, Mr Bilinsky emailed a letter to Ms Lenehan stating that the particulars previously requested have not been answered in the draft statement, and requesting the particulars sought on 8 November 2011. 14 February 2012: Ms Lenehan emailed a letter to Mr Bilinsky stating her belief that the particulars of the alleged offence provided in the draft statement of agreed facts provided on 14 December 2011, and in the summons, sufficiently identified the legal nature and the acts that formed the foundation of the alleged offence. 15 February 2012: Mr Bilinsky emailed a letter to Ms Lenehan stating that, having read the draft statement of facts, they were unable to distil the answers to the particulars, and that they had no alternative but to re-list the matter. 20 February 2012: The matter was re-listed by Mr Bilinsky so that they could seek an order that the prosecutor provide further and better particulars. This was opposed by the prosecutor. The Court directed the defendant to file a notice of motion returnable on 24 February 2012. 24 February 2012: The prosecutor indicated to the Court that a response to the defendant's request for further and better particulars would be provided during the course of the morning and the matter was stood down to 2 pm. The prosecutor then provided a seven-page letter of further and better particulars. At 2 pm the defendant advised the Court that the particulars provided were insufficient. The matter was stood over to 28 February to afford the prosecutor an opportunity to provide further particulars. 27 February 2012: Mr Bilinsky emailed a letter to Ms Lenehan requesting further and better particulars. 28 February 2012: Ms Lenehan provided Mr Bilinsky with an 11-page letter of further particulars. The defendant's counsel then advised the Court that the defendant wished to amend its notice of motion to seek the dismissal of the charge on the basis that it was duplicitous. The amended Notice of Motion was listed for hearing on 7 March 2012. 7 March 2012: The defendant's notice of motion was heard. 16 March 2012: The Court held that the summons as amplified by the particulars was duplicitous and required the prosecutor to elect, prior to the trial, which of the matters it proposed to pursue: Environment Protection Authority v Truegain Pty Ltd [2012] NSWLEC 41. 19 March 2012: On the first day set down for trial the commencement of the hearing was adjourned to the following day to enable the prosecutor to consider its position following the Court's judgment. 20 March 2012: The prosecutor elected to proceed upon only two of the particulars it had previously advised, and furnished the defendant with further particulars of the two failures upon which it now relied. The Court held that the two particulars were duplicitous and again required the prosecutor to elect as to which of the two particulars it wishes to pursue: Environment Protection Authority v Truegain Pty Ltd [No 2] [2012] NSWLEC 55. 21 March 2012: The prosecutor advised the Court that it declined to elect and sought an adjournment in order to appeal against the two interlocutory judgments above under s 5F Criminal Appeal Act 1912. The defendant also sought an adjournment on the grounds that it still did not know the case which it had to meet, that it had accordingly been unable to settle the statement of agreed facts, that it was unable to prepare a two-week hearing based upon 22 lever-arch folders which the prosecutor had served when much of that material may become irrelevant, that, until the provision of particulars on 28 February 2012, it was unable to properly instruct any experts and that the defendant still did not know on which matters it should obtain an expert opinion. The Court agreed to vacate the hearing dates for the trial and the defendant applied for an order for costs relating to its notice of motion of 20 February 2012, its costs of the two interlocutory hearings and its costs of this application for costs. 6It can be seen that the prosecutor was consistently in breach of complying with the Court's directions and persistently refused to supply the defendant with the further and better particulars that were sought. This appears from the following facts. 7The summons was served on 13 June 2011. On the return day of the summons a direction was made that the prosecutor file and serve its evidence by 19 August 2011. The prosecutor did not comply with that direction and, on 26 August 2011, the matter was adjourned to 16 September 2011. On 13 September 2011 the defendant's solicitor, Mr Bilinsky, told the prosecutor's solicitor, Ms Lenehan, that they were having difficulty in understanding the prosecutor's case and that they will have to seek further and better particulars. Ms Lenehan suggested that he might wait to get the affidavit of Dr Davies and that might clear up a lot of matters. After receiving and reading Dr Davies' report, Mr Bilinsky still required particulars of the prosecution case and so informed the Court on 30 September. The Court refused to make an order for particulars and listed the matter for plea or mention the following week. On 7 October the defendant's counsel appeared and again sought an order that the prosecutor provide particulars of the charge. The prosecutor did not consent to an order for particulars and the Court declined to make the order. The matter was then set down for hearing on 19 March 2012 and the prosecutor was ordered to serve a draft statement of agreed facts by 21 November 2011. Having read the evidence served by the prosecutor, Mr Bilinsky was still unable to properly understand the prosecutor's case and on 8 November sent a letter to Ms Lenehan seeking further and better particulars. On 6 December Mr Bilinsky again wrote to Ms Lenehan noting that he had not received the draft statement of facts and he had no response to his request for particulars. 8On 14 December 2011 Ms Lenehan emailed to Mr Bilinsky a draft statement of agreed facts comprising 254 paragraphs, and stated that the requested particulars were covered in that draft. On 7 February 2012 Mr Bilinsky wrote to Ms Lenehan stating that the particulars requested on 8 November 2011 had not been answered. On 14 February Ms Lenehan responded stating that the particulars provided in the draft statement of facts and in the summons correctly identified the legal nature and the acts that formed the foundation of the alleged offence. 9On 20 February 2012 the matter was re-listed by Mr Bilinsky so that he could seek an order that the prosecutor provide further and better particulars. This was opposed by the prosecutor. On 24 February 2012 the defendant's formal notice of motion for particulars was listed and then, for the first time, the prosecutor agreed to provide a response to the request for particulars. A seven-page response was provided to the defendant during the day, which the defendant advised the Court as being insufficient. 10On 27 February Mr Bilinsky sent a further letter requesting further and better particulars, which was then answered by an eleven-page response on 28 February. Having been provided with the further and better particulars, the defendant advised the Court on 28 February that it wished to amend its notice of motion so as to seek dismissal of the charge on the ground that it was duplicitous. On 16 March the Court found in favour of the defendant on its amended notice of motion and required the prosecutor to elect as to which of the matters particularised it proposed to pursue. On 20 March the prosecutor advised the Court of two particulars upon which it relied, which the Court again found to be duplicitous. 11It can be seen from this sorry recital of the essential facts that the prosecutor has been persistently in breach of the Court's directions and declined on no less than five occasions to provide the particulars sought by the defendant. It was, frankly, ridiculous to expect the defendant to distill the prosecutor's case from 22 lever-arch files of evidence which had been served and from a draft statement of facts comprising 254 paragraphs (which was itself served by the prosecutor more than three weeks late). The defendant's initial request for particulars was reasonable and, when the particulars were ultimately and somewhat reluctantly supplied, it was necessary for the Court to go to those particulars in order to understand whether the summons as particularised was duplicitous. 12The prosecutor's conduct of the prosecution is deserving of the severest censure and necessitated a large number of otherwise unnecessary pre-trial appearances, culminating in the defendant's notice of motion of 20 February (amended on 1 March) and the subsequent hearing before me. 13I accept the submission of Mr J Horowitz, appearing for the defendant, that the matter should not have proceeded until the particularisation of the acts and omissions said to found the charge was complete. I accept his submission that there was an obligation on the prosecutor to identify those acts and omissions, as explained by the plurality in Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 at [25] - [30]. So, too, in the present case the prosecutor had an obligation to provide particulars at the outset and, at the very latest, when they were specifically requested by the defendant. 14It follows that, in my view, it is just and reasonable for the prosecutor to pay the costs now sought by the defendant. The prosecutor, however, submits that the Court does not have the power to make an order for those costs. It is to that question that I now turn. Does the Court have jurisdiction to make an interlocutory order for costs? 15The defendant relies upon s 68 of the Land and Environment Court Act 1979 as the source of the Court's power to make an order for costs. That section relevantly states: 68 Amendments and irregularities (1) In any proceedings before the Court, the Court shall have power at any stage of the proceeding to order, upon such terms as to costs or otherwise as the Court thinks fit, any amendments to be made which, in the opinion of the Court, are necessary in the interests of justice. ... (4) This section does not apply to proceedings in Class 1, 2, 3 or 4 of the Court's jurisdiction. 16The present proceeding is, of course, in Class 5 of the Court's jurisdiction. The prosecutor submits, however, that s 68 does not apply. The prosecutor says that it does not apply for the following reasons: (a) The section does not apply to an application to provide particulars. Moreover, the defendant effectively discontinued that motion when the particulars were supplied and it filed an amended notice of motion claiming duplicity. (b) The section is not a power to awards costs for an application to traverse an indictment pursuant to s 17 of the Criminal Procedure Act 1986. (In the present case there was, in effect, a traverse of the summons as amplified by the particulars.) Section 68 is not a power to award costs where the Court directs a prosecutor to elect which particulars in the summons it wishes to pursue. No amendment to the summons was ordered. (c) The section is a provision granting power to order amendments. The qualification "... upon such terms as to costs or otherwise as the Court thinks fit ...", is ancillary to that power. It does not empower the Court to make on order for costs other than as a consequence of any amendment. (d) Part 5 of Chapter 4 of the Criminal Procedure Act (ss 245 - 257G) applies to the Class 5 summary jurisdiction of the Court: see s 41, Land and Environment Court Act 1979, s 170(3) Criminal Procedure Act. Sub-section 257C(1) states that the Court may order the prosecutor to pay the costs of an accused person at the end of proceedings. That sub-s states: A court may at the end of proceedings under this Part order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. By way of analogy, s 213, which relates to proceedings in a Local Court, is to a similar effect, and in Director of Public Prosecutions v Cakici [2006] NSWSC 454, Johnson J said at [38] that the Local Court did not have the power to order costs in the absence of that provision. Accordingly, since the present proceedings is not at an end, the Court cannot make an order for costs. (e) In any event, the defendant has not discharged the evidential burden that there must be exceptional circumstances relating to the conduct of the proceedings by the prosecutor such that it is just and reasonable to make an award of costs, as required by s 257D(1)(d) of the Criminal Procedure Act, which relevantly states: (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: ... (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. (f) Section 68 of the Court Act cannot stand together with Part 5 of Chapter 4 of the Criminal Procedure Act. 17The defendant relies upon the following submissions, as I understand them. (a) The effect of the judgments on the amended notice of motion was to put the prosecutor to an election, that is, to require the prosecutor to amend the summons as particularised by deleting those particulars it did not wish to pursue. By requiring the prosecutor to amend in this way the Court was thus enlivening the power under s 68 of the Court Act. (b) The defendant's notice of motion for particulars was inextricably linked to its subsequent application in the amended notice of motion to have the summons dismissed on the basis that the charge was duplicitous; and furthermore, if the summons had been properly drafted, that is, in a way that was adequately particularised and was not duplicitous, the defendant would not have needed to apply for further and better particulars. Accordingly, the costs of that notice of motion are properly characterised as costs thrown away by reason of the need to amend the summons. It is thus just and reasonable to require the prosecutor to pay the defendant's costs as a condition of such leave being granted. (c) In the event that ss 257C and 257D of the Criminal Procedure Act may be said to fetter the Court's discretion to award costs, those provisions do not affect the power to award costs under any other statutory provision, such as s 68 of the Court Act, or s 257F of the Criminal Procedure Act which states that a court may in proceedings under Part 5 order that one party pay costs if the matter is adjourned. That is, s 257C is a separate and independent head of power to s 68 of the Court Act. 18I find that the Court has jurisdiction to make an order for costs at this stage of the proceedings, notwithstanding the fact that s 257C of the Criminal Procedure Act states that a court "may at the end of proceedings" make an order that the prosecutor pay professional costs "if the matter is dismissed or withdrawn". Sections 257C of the Criminal Procedure Act and s 68(1) of the Court Act are separate heads of power. That is, s 257C does not exclude the operation of s 68(1). Section 68(4) states that the section does not apply in classes 1 - 4 of this Court's jurisdiction, the clear intention being that it applies to proceedings in the Class 5 (criminal) jurisdiction. The two provisions are not inconsistent and can operate together. 19In Wakool Shire Council v Garrision Cattle Feeders Pty Limited [2010] NSWLEC 199, Sheahan J found that a charge was bad for duplicity and granted leave to the prosecutor to amend and ordered the prosecutor to elect upon which of three available formulations of a charge it wished to proceed. His Honour also ordered the prosecutor to pay the defendant's costs. Although his Honour did not identify the source of the power to award costs, it must be assumed that the power to do so came from s 68 of the Court Act. 20In the present case, the effect of the notice of motion (including the amended notice of motion) brought by the defendant was that the prosecutor, after earlier resistance, provided the further particulars sought and the Court then effectively found in favour of the defendant by the findings of duplicity and requiring the prosecutor to amend the summons as particularised by electing which of the particulars it proposed to rely upon. 21In these circumstances the defendant will, of course, be fully entitled to the order for costs that it seeks. Not only was it successful in requiring the prosecutor to amend, but the whole of the prosecutor's conduct of the proceedings to date shows that the defendant was fully justified in bringing the notice of motion (and the amended notice of motion). I find that it is just and reasonable that the prosecutor pay the defendant's costs. 22Since s 68 of the Court Act is a separate head of power to ss 257C and 257D of the Criminal Procedure Act, the power may be exercised without the limitations on the power in s 257D. It is not necessary, therefore, that exceptional circumstances relating to the conduct of the proceedings must exist before costs may be awarded, as required by sub-s 257D(1)(d). 23However, if sub-s 257D(1)(d) were to apply, then it has been held that the expression "exceptional circumstances" in this context is broad and is essentially whether it is "just and reasonable" to make an order for costs: Halpin v Department of Gaming and Racing [2007] NSWSC 815. In that case Hall J considered the meaning of s 70 of the Crimes (Appeal and Review) Act 2001, which provides for a prohibition on the award of costs in favour of an appellant whose conviction is set aside unless the appeal court is satisfied of the matters specified in s 70(1)(a) - (d). Those provisions are in similar terms to s 257D of the Criminal Procedure Act, including the requirement that "because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant": s 70(1)(d). Hall J said, at [65]: The expression 'exceptional circumstances' is a broad one. Without it being necessary to define its outer limits, the question essentially is whether or not there was any relevant conduct by the prosecutor which would make it 'just and reasonable' to award costs in favour of the plaintiff. 24In so concluding, Hall J referred, at [66], to the judgment of Sully J in the Court of Criminal Appeal in Caltex Refining Co Pty Ltd v Maritime Services Board of New South Wales (1995) 36 NSWLR 552; 78 A Crim R 368, in which that Court determined that the requirement that an order be "just and reasonable" involves both a fair hearing and that the terms of the order finally made are reasonable, per Sully J at 561: ... the words of the section require that an order for the payment of costs pursuant to s 52 of the Act must be both just and reasonable. The order must be just in terms of the way in which it has been reached; and it must be reasonable in its actual terms. 25Accordingly, I find that s 257D does not apply to an order which is made under s 68 of the Court Act. If it were to apply then, as noted at [22] and [23] above, it is nevertheless just and reasonable to order the prosecutor to pay the defendant's costs which it now seeks. The condition imposed upon the power to make an order for costs in s 257D is satisfied. 26In conclusion, I find that it is appropriate that the prosecutor pay the defendant's costs thrown away upon the making of the necessary order for the amendment to the summons as particularised. 27I make the following orders: 1. That the prosecutor amend the summons as particularised by deleting the particulars to summons upon which it may no longer rely. 2. That the prosecutor pay the defendant's costs thrown away by reason of the amendment, such costs to include the following: (a) the costs of and incidental to the defendant's notice of motion filed on 20 February 2012; (b) the costs of and incidental to the defendant's amended notice of motion filed on 1 March 2012; and (c) the defendant's costs of 19, 20 and 21 March 2012. ********** 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. Decision last updated: 18 April 2012