Sutherland Shire Council v Benedict Industries Pty Ltd (No 5) [2015] NSWLEC 103

Sutherland Shire Council v Benedict Industries Pty Ltd (No 5) [2015] NSWLEC 103

The prosecutor's claimed losses and expenses for complying with the subpoena fell within the concept of costs in Criminal Procedure Act 1986 s 257B. To the extent that Uniform Civil Procedure Rules 2005 r 33.11 would otherwise permit a prosecutor to recover those amounts from an accused before the s 257B preconditions were met, r 33.11 was impliedly repealed or displaced by s 257B. Because Benedict had not been convicted and no order under s 10 of the Crimes (Sentencing Procedure) Act 1999 had been made, the Court had no power at that stage to order Benedict to pay the council's claimed subpoena compliance losses and expenses.

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Class 5 Criminal Proceedings in the Land and Environment Court's Summary Jurisdiction / Notice of Motion by Prosecutor for Reasonable Loss and Expenses Incurred in Complying With Subpoena Issued by Defendant
Outcome
Application dismissed; exhibits returned.
Legal Topics
['reasonable Loss or Expenses of Subpoena Compliance' 'costs Payable by Accused to Prosecutor' 'implied Repeal' 'inconsistency Between Uniform Civil Procedure Rules 2005 R 33.11 and Criminal Procedure Act 1986 S 257 B' 'summary Jurisdiction of the Land and Environment Court']
['costs' 'criminal Procedure' 'statutory Construction' 'planning and Environment'] ['reasonable Loss or Expenses of Subpoena Compliance' 'costs Payable by Accused to Prosecutor' 'implied Repeal' 'inconsistency Between Uniform Civil Procedure Rules 2005 R 33.11 and Criminal Procedure Act 1986 S 257 B' 'summary Jurisdiction of the Land and Environment Court']

Case Brief

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Procedural Posture

Class 5 Criminal Proceedings in the Land and Environment Court's Summary Jurisdiction / Notice of Motion by Prosecutor for Reasonable Loss and Expenses Incurred in Complying With Subpoena Issued by Defendant

Legal Issues

  1. 1 ["Whether the Court had power under Uniform Civil Procedure Rules 2005 r 33.11 to order the defendant accused to pay the prosecutor's reasonable loss or expenses incurred in complying with a subpoena." "Whether Criminal Procedure Act 1986 s 257B precluded an order for payment of the prosecutor's subpoena compliance losses and expenses before conviction or an order under s 10 of the Crimes (Sentencing Procedure) Act 1999." 'Whether the claimed losses and expenses were reasonable in light of alleged disentitling conduct by the prosecutor.' "Whether, if the losses and expenses were reasonable, the Court should nevertheless refuse relief as a matter of discretion because of the prosecutor's alleged disentitling conduct."]

Ratio Decidendi

The prosecutor's claimed losses and expenses for complying with the subpoena fell within the concept of costs in Criminal Procedure Act 1986 s 257B. To the extent that Uniform Civil Procedure Rules 2005 r 33.11 would otherwise permit a prosecutor to recover those amounts from an accused before the s 257B preconditions were met, r 33.11 was impliedly repealed or displaced by s 257B. Because Benedict had not been convicted and no order under s 10 of the Crimes (Sentencing Procedure) Act 1999 had been made, the Court had no power at that stage to order Benedict to pay the council's claimed subpoena compliance losses and expenses.

Court Disposition

Application dismissed; exhibits returned.

Orders

  • ['Application for reasonable loss and expenses in complying with subpoena dismissed.' 'Exhibits returned.']