Land and Environment Court New South Wales Medium Neutral Citation: Environment Protection Authority v Ashmore (No 2) [2014] NSWLEC 142 Hearing dates: 5 September 2014 Decision date: 05 September 2014 Jurisdiction: Class 5 Before: Craig J Decision: Order as set out at [15] Catchwords: COSTS - application for investigation costs under s 248 of the Protection of the Environment Operations Act 1997 (NSW) - whether relevant nexus between the facts that pertained to the charges and the claimed costs - investigation costs not reasonably incurred as a consequence of investigating the offences in question - application to re-open case granted - order for investigation costs refused Legislation Cited: Protection of the Environment Operations Act 1997 (NSW) Category: Costs Parties: Environment Protection Authority (Prosecutor) Julian James Ashmore (Respondent) Representation: R Fox (solicitor) (Prosecutor) No appearance (Defendant) Environment Protection Authority (Prosecutor) No appearance (Defendant) File Number(s): 50219, 50220 of 2014 EX TEMPORE Judgment 1The hearing on sentence in this prosecution concluded on Thursday 28 August 2014. At the conclusion of that hearing I reserved my decision. I informed the parties that I would deliver judgment in the course of the ensuing week. 2On Wednesday last, 3 September, the parties were notified that I would deliver judgment today at 10.00am. Yesterday, 4 September, the Prosecutor notified the Registrar by email that at the sentence hearing it had omitted to claim investigation expenses from the defendant and would now seek to do so. Evidence of the expenses claimed were said to be identified in an affidavit sworn by Ruth Owler on 26 August 2014 and filed only a day or so before the sentence hearing commenced. 3Application is now made to re-open the case to adduce evidence in support of an order sought from the Court that the Defendant pay the Prosecutor's investigation costs. The order is sought pursuant to s 248 of the Protection of the Environment Operations Act 1997 (NSW) (the POEO Act). 4The Defendant has not appeared at today's hearing. Mr Fox, who today appears for the Prosecutor, has tendered a copy of an email received by him this morning from the Defendant in which the Defendant said: "Just confirming our conversation this morning and previous discussions re costs (legal and investigative). I consent to costs and prefer that Justice Craig determine the percentage rather than the percentage assessed by the EPA." 5That email, so it seems to me, is equivocal in terms of the distinction between investigation costs and legal costs. The making of an order for legal costs raises different considerations to those relevant to an order that may be made pursuant to s 248(1) of the POEO Act. That subsection relevantly provides: "(1) The court may, if it appears to the court that a regulatory authority has reasonably incurred costs and expenses during the investigation of the offence, order the offender to pay to the regulatory authority the costs and expenses so incurred in such amount as is fixed by the order." 6The evidence that has been provided in support of the Prosecutor's application comprises two affidavits. First, is an affidavit of Anna Sinclair affirmed 4 September 2014. Ms Sinclair was the instructing officer during the course of the sentence hearing and responsible for instructing counsel who then appeared. She states that the failure to request an order for investigation costs in the course of the sentence hearing was an inadvertent omission both on her part and on the part of counsel. I have no reason to question that evidence and I have no hesitation in accepting it as explaining the omission that the Prosecutor now seeks to redress. 7The evidence upon which the Prosecutor relies to substantiate its claim is the evidence of Ruth Owler contained in the affidavit of Ms Owler to which I have earlier referred. Ms Owler identifies three aspects of work for which claim is made. The first two are the more substantial in terms of costs while the third relates to a volumetric survey of material on or in the vicinity of the dam wall. The first two accounts are identified as having been received from a firm of consultant geotechnical engineers for providing: "i. Geotechnical engineering advice on 7 October 2011 from PSM Consult Pty Ltd relating to the stability of the dam wall so that EPA officers could safely conduct sampling and other related evidence collection on the dam wall and downstream of the dam wall ... ii. Geotechnical engineering advice on 28 March 2012 from PSM Consult Pty Ltd relating to the stability of the dam wall so that EPA officers could safely conduct sampling and other related evidence collection on the dam wall and downstream of the dam wall ..." 8It is to be remembered that the evidence before the Court in the sentence hearing was directed to a volume of waste delivered to the property on which the dam wall was located in late March and early April 2011. At that time 3,840 tonnes of waste containing asbestos was said to have been delivered from the Shell Clyde Refinery site at Rosehill (the Shell site) to that property. That waste, according to the evidence, was deposited in two places on the property. Some was deposited into the site of a former quarry on that same property, with a view to restoring the landform. Some of the material was deposited in the vicinity of the dam wall, with the intention of using it to repair that wall. 9Importantly, the evidence did not enable any witness to determine precisely where and how much of the waste that was the subject of charges against Mr Ashmore had been deposited either in the quarry void or on or near the dam wall. What the evidence does reveal is that both before the delivery of the waste that was the subject of the charges against Mr Ashmore and subsequent to that waste being deposited at either of the two locations identified on the property, some 3,556 truckloads of fill or waste were also delivered to the property. That fill or waste was deposited either in the quarry void or at or on the dam wall. According to the evidence, both the waste that was the subject of the present charges and the additional fill or waste to which I have referred had all been deposited at the two locations on the property prior to the first inspection of the site by the geotechnical engineers whose charges the Prosecutor now seeks to recover. 10It seems to me that in order to sustain the claim under s 248 for the investigation costs now sought, there must be a relevant nexus between the facts that pertain to the charges to which a plea of guilty has been entered and the claim for costs sought to be recovered. 11On the sentence hearing, no substantial evidence was led as to the stability, or instability, as the case may be, of the wall relevant to the waste that is the subject of the charges and which was deposited on the property. The only evidence directed to any aspect of stability of the dam wall was by way of background. That evidence indicated that the dam was constructed in 1979 and "it had suffered slips during that time". Whether those slips had been rectified is not the subject of evidence. Evidence as to the stability of the dam wall or the potential effect upon stability by the waste for which Mr Ashmore was responsible was not adduced in the course of the sentence hearing. 12While I accept that it was appropriate for the Prosecutor's investigators to inspect the dam site as part of an investigation, the entitlement to claim the costs of site stability investigations requires the Prosecutor to establish that those investigations were occasioned by the depositing of waste that is the subject of the charges against Mr Ashmore. Expressed differently, to justify the charges, it was necessary to demonstrate that the waste transported from the Shell site and deposited on or in the vicinity of the dam wall was itself the basis for or the cause of the need to investigate the stability of the site. 13By reference to s 248(1) of the POEO Act, I am not satisfied that the Prosecutor has established that the costs of the geotechnical site stability investigation has reasonably been incurred by the Prosecutor as a consequence of investigating the offences with which the Defendant was charged. It may be that if other charges had been brought (and I am not suggesting that they should) relating to the total volume of material deposited on the dam site as distinct from an unknown volume from the Shell site, the claim for site investigation charges might have been sustained. 14Reading the section in context, for investigation costs reasonably to be incurred such as to found an order under the section, in the present case those costs must be directed to the waste that is the subject of the charges brought against Mr Ashmore. What was being investigated when the consultants first went to the site of the dam wall was other fill material that had been deposited, with an unknown volume of waste in that location for which Mr Ashmore was responsible. 15In all the circumstances, I allow the case to be re-opened. However, for the reasons I have stated I decline to make an order pursuant to s 248 requiring the Defendant to pay those investigation costs. ********** 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: 10 September 2014