Kogarah City Council v El Khouri [2014] NSWLEC 196

Land and Environment Court New South Wales

Medium Neutral Citation: Kogarah City Council v El Khouri [2014] NSWLEC 196 Hearing dates: 16 October 2014 Decision date: 24 December 2014 Jurisdiction: Class 6 Before: Preston CJ Decision: 1. The appeal is dismissed. 2. The appellant is to pay the respondents' costs of the appeal. Catchwords: APPEAL - appeal against order for costs by Local Court against prosecutor - prosecution for environmental offence - prosecutor failed to adduce evidence on an element of offence - Local Court ruled defendants had no case to answer and dismissed proceedings - Local Court ordered prosecutor to pay the professional costs of the defendants - prosecutor appealed costs order on questions of law - whether Court below erred in consideration of exceptional circumstances - whether Court below erred by taking into account an irrelevant consideration of the emotional and financial burden on the defendants by the bringing of the charges - whether Court below erred in not considering a relevant consideration of the polluter pays principle - whether Court below erred in not considering admissions made by the defendants - Court below did not err on any question of law - appeal dismissed - appellant ordered to pay the respondents' costs of the appeal Legislation Cited: Criminal Procedure Act 1986 ss 213, 214 Crimes (Appeal and Review) Act 2001 s 42(2B), 44(1) and (2) Environmental Planning and Assessment Act 1979 ss 76A, 125 Cases Cited: Environment Protection Authority v Bulga (No 2) [2014] NSWLEC 70; (2014) 202 LGERA 203 Halpin v Department of Gaming and Racing [2007] NSWSC 815 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 O'Brien v Hutchinson [2012] NSWSC 429 Port Macquarie-Hastings Council v Lawlor Services Pty Ltd; Port Macquarie-Hastings Council v Petro (No 7) [2008] NSWLEC 75; (2008) 159 LGERA 87 Category: Costs Parties: Kogarah City Council (Appellant) George Peter El Khouri (First Defendant) A No Limit Tree Lopping Service Pty Ltd ACN 141 451 130 (Second Defendant) Representation: Counsel: Mr A Isaacs (Barrister) (Appellant) Mr C Ireland (First and Second Defendants) Solicitors: Wilshire Webb Staunton Beattie (Appellant) Bayside Solicitors (Defendants) File Number(s): 60305 of 2014 Publication restriction: No Decision under appeal Jurisdiction: 9109 Before: Magistrate Stapleton File Number(s): 2013/00171231