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. Power of the Court to Vary Final Orders in Class 5 Matters 8Unlike civil matters, the power of the Court to vary final orders in criminal proceedings is circumscribed. 9Rule 5.2 of the Land and Environment Court Rules 2007 ("the LEC Rules") relevantly provides (emphasis added): 5.2 Application of other rules of court (1) Parts 55 (Contempt) and 75 (Criminal proceedings) of the Supreme Court Rules 1970 apply, so far as applicable, to proceedings to which this Part applies. (2) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Part applies: (a) Part 1 (Preliminary), other than rules 1.10, 1.10A and Division 4, (b) Part 2 (Case management generally), (c) Part 4 (Preparation and filing of documents), other than rules 4.2, 4.7A, 4.9 and 4.12, (d) rules 6.15 and 6.16, (e) Part 19 (Amendment), (f) rules 31.3, 31.7, 31.11, 31.12, 31.21 and 31.22, (g) rule 34.1, (h) Part 36 (Judgments and orders), other than rule 36.11. ... (6) In the application of the provisions referred to in subrules (1), (2) and (3): (a) a reference to the plaintiff is taken to be a reference to the prosecutor, and (b) a reference to a defendant is taken to be a reference to an accused person. 10Part 36 of the UCPR deals with "Judgments and Orders". Rule 36.15 of the UCPR is relevantly as follows (emphasis added): 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 11To the extent applicable, r 36.16 of the UCPR states (emphasis added): 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order. (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief. (3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered. 12Rule 18.2(2)(a) of the UCPR states: 18.2 Requirement for notice (2) Despite subrule (1), a person may move the court to make an order without notice of motion having been filed or served on a person if: (a) that person consents to the making of the order. 13The first basis upon which the parties relied for a variation of order 5 was r 36.16(3A) of the UCPR, applicable by reason of r 5.2(2)(h) of the LEC Rules. However, and as required by r 36.16(3A), the initial reliance upon this rule was not accompanied by the requisite filing of a notice of motion. This rule did not, therefore, enable the Court to vary its final orders. 14The second basis for the variation was said to be r 36.15(2) of the UCPR. Again, reliance on this rule was problematic because while the rule plainly permits the Court to set aside an order or judgment by consent, it does not, by its express words, contain a power to vary an order previously made by the Court (cf r 18.2(2)(a) of the UCPR). Neither party was able to furnish the Court with an authority indicating that this construction was incorrect. 15The third basis for the variation, which was relied upon only by the prosecutor, was r 18.2(2)(a) of the UCPR. The difficulty with this power was, however, that Pt 18 of the UCPR does not apply to proceedings in Class 5 of the Court's jurisdiction (see r 5.2(2) of the LEC Rules). 16All three bases having been rejected by the Court as providing power to the Court to vary order 5, Truegain immediately sought to file a notice of motion seeking to vary the order, consequent upon it offering an undertaking to pay the filing fee in the Registry. Upon the filing of the notice of motion, the power contained in r 36.16(3A) was enlivened and the Court varied order 5 as requested. Orders 17Order 5 made on 14 November 2014 in Truegain (No 4) is varied to read, "the defendant is to pay the prosecutor's legal costs incurred between 20 December 2013 and 22 October 2014 (inclusive) as agreed or assessed". ********** 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: 20 November 2014