Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No. 2) [2009] NSWLEC 200

Director-General, Department of Environment and Climate Change v Gleeson; Director-General, Department of Environment and Climate Change v Epacris Pty Ltd (No. 2) [2009] NSWLEC 200

The Court held that s 253 of the Criminal Procedure Act 1986 did not authorise a costs order because a permanent stay is not a dismissal of charges on the merits. However, the Court had implied jurisdiction, as an incident of its power to control abuse of process and in the absence of a statutory prohibition, to award costs after permanently staying the prosecutions. In exercising discretion, costs were limited to the costs of the notices of motion for a permanent stay because the notices were filed belatedly, the prosecutor was blameless, and trial preparation costs would have been avoided had the motions been brought earlier.

Jurisdiction
Australia
Judgment Date
11 December 2009
Procedural Posture
Criminal Prosecutions Under the Native Vegetation Conservation Act 1997 / Application by Defendants for Costs After Permanent Stay of Prosecutions
Outcome
Costs application allowed in part in reasons; final orders adjourned to allow the prosecutor to consider whether to apply for a stated case.
Legal Topics
['permanent Stay of Prosecutions' 'abuse of Process' 'statutory Costs Regime' 'inherent or Implied Power to Award Costs' 'costs Discretion']
['criminal Law' 'costs' 'environment and Planning Law'] ['permanent Stay of Prosecutions' 'abuse of Process' 'statutory Costs Regime' 'inherent or Implied Power to Award Costs' 'costs Discretion']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Prosecutions Under the Native Vegetation Conservation Act 1997 / Application by Defendants for Costs After Permanent Stay of Prosecutions

Legal Issues

  1. 1 ['Whether the Court has power to make an order for costs where the prosecution is permanently stayed rather than dismissed.' 'If the Court has such power, whether costs should be ordered in the exercise of discretion.']

Ratio Decidendi

The Court held that s 253 of the Criminal Procedure Act 1986 did not authorise a costs order because a permanent stay is not a dismissal of charges on the merits. However, the Court had implied jurisdiction, as an incident of its power to control abuse of process and in the absence of a statutory prohibition, to award costs after permanently staying the prosecutions. In exercising discretion, costs were limited to the costs of the notices of motion for a permanent stay because the notices were filed belatedly, the prosecutor was blameless, and trial preparation costs would have been avoided had the motions been brought earlier.

Court Disposition

Costs application allowed in part in reasons; final orders adjourned to allow the prosecutor to consider whether to apply for a stated case.

Orders

  • ["The appropriate order would be that the prosecutor pay the defendants' costs of the notices of motion for a permanent stay filed on 13 February 2009." 'A short adjournment was granted before making final orders.' 'The proceedings were listed before Lloyd J at 9:30 am on 15 December 2009 for either the making of...