Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202 Hearing dates: On Written Submissions Date of orders: 28 August 2019 Decision date: 28 August 2019 Before: Preston CJ of LEC, Davies J and Adamson J Decision: The Court orders: (1) The respondents, Grafil Pty Ltd and Mr Mackenzie, are to pay the costs of the appellant, the Environment Protection Authority, of the proceedings in this Court. Catchwords: COSTS – questions of law submitted under Criminal Appeal Act s 5AE during summary proceedings in Land and Environment Court – successful appellant sought costs of s 5AE proceedings – costs ordered to successful appellant Legislation Cited: Criminal Appeal Act 1912 Cases Cited: Clyne v Wrigley [1980] 1 NSWLR 599 Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252 Latoudis v Casey (1990) 170 CLR 534 Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426 Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWLEC 71 Category: Costs Parties: Environment Protection Authority (Appellant) Grafil Pty Ltd (First Respondent) Robert Mackenzie (Second Respondent) Representation: Counsel: Ms A Mitchelmore SC, with Mr P English (Appellant) Mr T Howard SC, with Mr C Ireland (Respondents) Solicitors: Legal Services Branch, Environment Protection Authority (Appellant) Johnson Winter & Slattery Lawyers (Respondents) File Number(s): 2016/157886 & 2016/157995 Publication restriction: Nil Decision under appeal Court or tribunal: Land and Environment Court Jurisdiction: Criminal Citation: [2018] NSWLEC 99 Date of Decision: 28 June 2018 Before: Pain J File Number(s): 2016/157886 & 2016/157995 Judgment 1. The Court: The appellant, the Environment Protection Authority ("EPA"), by notice of motion filed 6 August 2019, applies for an order that the respondents, Grafil Pty Ltd and Mr Mackenzie, pay its costs of the proceedings in this Court. The proceedings involved questions of law submitted under s 5AE of the Criminal Appeal Act 1912 ("the Act") by the trial judge in the Land and Environment Court at the request of the EPA. 2. This Court has answered the submitted questions on 2 August 2019: see Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie [2019] NSWCCA 174 at [410]. 3. Section 5AE(2) of the Act empowers this Court to "make any such order or give any such direction to the court concerned as it thinks fit." This includes making an order for costs: Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWLEC 71 at [38]-[39] and Clyne v Wrigley [1980] 1 NSWLR 599 at 601. 4. The power to award costs under s 5AE(2) is conferred in terms which do not indicate the considerations which may be relevant to the exercise of the power, create an expectation or presumption that the power will be exercised in one way or another or require special reasons or special circumstances before the power is exercised: Robinson v Woolworths Ltd (2005) 158 A Crim R 546; [2005] NSWCCA 426 at [59] and Environment Protection Authority v Riverina (Australia) Pty Ltd (No 2) [2015] NSWCCA 252 at [21]. The discretion should only be exercised on grounds connected with the proceedings or the conduct of the parties in relation to the proceedings: Latoudis v Casey (1990) 170 CLR 534 at 569; Robinson v Woolworths Ltd at [59]. 5. The EPA submitted that it was successful in the proceedings. This Court answered 13 of the 15 questions submitted at the request of the EPA and the threshold question submitted at the request of the respondents in favour of the EPA. The Court determined that the remaining two questions were unnecessary to answer in light of the Court's answers to the other questions. 6. Conversely, the respondents were unsuccessful in the proceedings in this Court. The conclusions of the trial judge which led to the submitted questions were based on the arguments the respondents had advanced at the trial in the Court below. 7. In this Court, the respondents, entirely understandably, supported the trial judge's conclusions accepting the respondents' arguments. But this Court's answers to the submitted questions involved rejection of the respondents' arguments. 8. As a consequence of the Court's answers to the questions, the proceedings below now need to be re-determined. 9. The EPA submitted that, consistently with the purpose of a costs order to compensate the successful party, not to punish the unsuccessful party, the Court should make an order in its favour in relation to the costs of the proceedings before this Court. 10. The respondents contended that it would be neither appropriate nor just to order them to pay the EPA's costs of the proceedings in this Court. The respondents advanced six reasons: 1. precedent: the respondent's researches have not been able to find that this Court had made a costs order in favour of the Crown as an appellant in stated case proceedings arising from a judgment in which a trial judge had found the respondent not guilty of an offence after a trial of the merits; 2. double jeopardy: given that the respondents were found not guilty by the trial judge and that this Court has now ordered the trial court to re-determine the question of their innocence or guilt, the principles of double jeopardy arise for consideration in determining whether to exercise the discretion under s 5AE(2) to award costs to the EPA; 3. interests of justice: in the interests of justice, there should be a presumption that the Crown should not be awarded its costs as an appellant in stated case proceedings of this kind; 4. no presumption that costs follow the event: there is no general rule in criminal proceedings that costs should follow the event or a particular presumption that costs should follow the event in stated case proceedings; 5. no conduct of the respondent justifying adverse costs order: the respondents' conduct in these proceedings was proper; there was nothing unreasonable in the respondents supporting the considered findings of the trial judge with respect to the submitted questions; and 6. avoiding a perverse outcome: it would be a perverse outcome if the respondents, having been found not guilty at trial and having argued the submitted questions consistently with the trial judge's rulings, were ordered to pay the EPA's costs of the stated case proceedings when, had they been found guilty at trial, they could have argued the very same points on an appeal under s 5AB of the Act against conviction in challenge to the trial judge's rulings and would have been immune from any exposure to any costs order. 1. The Court finds that a proper exercise of the discretion on costs in the circumstances of this case is that the EPA, as the successful party, should be awarded costs of the proceedings in this Court. 2. This is not to apply any presumption that costs follow the event. It is simply a recognition that the costs discretion should be exercised on grounds connected with the proceedings or the conduct of the parties in the proceedings. The result of the proceedings is clearly a matter connected to the proceedings. The EPA was successful, and the respondents were unsuccessful, in their respective arguments on the submitted questions in the proceedings. An award of costs serves the purpose of compensating the EPA for its costs incurred in the proceedings. It is not punishing the respondents for being unsuccessful in the proceedings. 3. The respondent's arguments can be dealt with shortly. 4. First, the proper exercise of the costs discretion in this case is not dependent on whether this Court has or has not ordered costs in favour of the Crown as appellant in other proceedings under s 5AE of the Act. 5. Secondly, the principle of double jeopardy has no application in the exercise of the costs discretion under s 5AE(2) of the Act. 6. Thirdly, contrary to the respondents' third and fourth submissions, the power to award costs under s 5AE(2) of the Act does not create a presumption that the power will be exercised one way rather than another: Robinson v Woolworths Ltd at [59]. 7. Fourthly, the basis for the Court awarding costs in favour of the EPA as the successful party is not any unreasonable conduct of the respondents, whether in defending the trial judge's rulings or otherwise. It simply reflects the result of the proceedings. 8. Finally, there is no perversity of outcome by awarding the EPA costs in these proceedings under s 5AE(1) of the Act. The fact that had different proceedings been brought by the respondents, being an appeal against conviction under s 5AB of the Act, no order for costs could have been made against the respondents is not relevant. That result flows from the statutory bar on awarding costs in s 17(1) of the Act. But that statutory bar does not apply to proceedings under s 5AE(1) of the Act. Order 1. For the reasons given above, the Court makes the following order: 1. The Court orders the respondents, Grafil Pty Ltd and Mr Mackenzie, to pay the costs of the appellant, the Environment Protection Authority, of the proceedings in this Court. ********** 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: 28 August 2019