Environment Protection Authority v Truegain Pty Limited (No 5) [2014] NSWLEC 184

Land and Environment Court New South Wales

Medium Neutral Citation: Environment Protection Authority v Truegain Pty Limited (No 5) [2014] NSWLEC 184 Hearing dates: 20 November 2014 Decision date: 20 November 2014 Jurisdiction: Class 5 Before: Pepper J Decision: Order 5 of judgment of 14 November 2014 varied. Catchwords: PROCEDURE - application to vary final costs order in criminal proceedings - basis of Court's power to make variation - order varied. Legislation Cited: Land and Environment Court Rules 2007, r 5.2 Uniform Civil Procedure Rules 2005, Pt 36, rr 18.2(2)(a), 36.15, 36.16 Cases Cited: Environment Protection Authority v Truegain Pty Limited (No 4) [2014] NSWLEC 179 Category: Costs Parties: Environment Protection Authority (Prosecutor) Truegain Pty Limited (Defendant) Representation: Ms P Lenehan (Prosecutor) Mr J Horowitz (Defendant) Office of Environment and Heritage (Prosecutor) Horowitz & Bilinsky (Defendant) File Number(s): 50471 of 2011

Judgment

The Defendant Seeks to Vary a Costs Order in Criminal Proceedings 1On 14 November 2014 the Court handed down a sentence decision in Environment Protection Authority v Truegain Pty Limited (No 4) [2014] NSWLEC 179. 2Order 5 of that decision stated as follows (at [183]): (5) the defendant is to pay the prosecutor's legal costs incurred after 19 December 2013 as agreed or assessed; and 3The reasons for the time limitation contained in order 5 were set out in Truegain (No 4) (at [138]-[139]). 4The defendant, Truegain Pty Limited ("Truegain") seeks to vary order 5 to now be (emphasis added): the defendant is to pay the prosecutor's legal costs incurred between 20 December 2013 and 22 October 2014 (inclusive) as agreed or assessed. 5The further confinement of the duration of Truegain's liability to pay the prosecutor's legal costs arose because of the Court's rejection of the prosecutor's application that Truegain also be ordered to pay its investigation costs. The circumstances of the Court finding that there was no liability for Truegain to pay the investigation costs of the prosecutor was occasioned by the inadmissibility of the evidence relied upon by the prosecutor to prove the relevant nexus between the investigations carried out and the offence with which Truegain was charged. This was discussed at length in Truegain (No 4) (at [140]-[164]). Suffice it to say, that considerable legal argument was devoted to the issue because the matter was not completely dealt with by the prosecutor during the substantive sentence hearing. Accordingly, given that Truegain was successful on an issue to which considerable time, and therefore, legal costs, were devoted, it sought its liability to pay the prosecutor's legal costs to be limited in such a way that additionally excluded any liability to pay the legal costs associated with resolution of the prosecutor's claim for investigation costs. 6It is unusual for the Court to apportion costs in criminal proceedings of this nature, however, because the application is consented to by the prosecutor, the Court is willing to make the order sought by Truegain. 7Regrettably, the application for the further limiting of Truegain's liability to pay the prosecutor's legal costs was not made by Truegain until after judgment had been delivered. This, therefore, gave rise to the question of whether the Court had the power to deal with the application. The parties were required to provide in writing the basis of the Court's power to vary its final orders, particularly in light of the fact that these were criminal proceedings to which the Uniform Civil Procedure Rules 2005 ("UCPR") do not wholly apply. Three bases were proffered, each of which is discussed below.