Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey; Gordon Plath of the Department of Environment and Climate Change v Southton [2009] NSWLEC 102

Gordon Plath of the Department of Environment and Climate Change v Vurlow; Gordon Plath of the Department of Environment and Climate Change v Hockey; Gordon Plath of the Department of Environment and Climate Change v Southton [2009] NSWLEC 102

The defendants did not establish any basis under s 257D(1) of the Criminal Procedure Act 1986 for an award of professional costs. Although Dr Hazelton's report later undermined the prosecutor's case on soil type, the prosecutor's investigation was not unreasonable because Ms McKinley's report addressed the elements of the offence, including soil type, and she physically examined the soil and considered relevant mapping. The proceedings were not doomed to fail when commenced because there was evidence from Ms McKinley and Mr Goodwin capable of supporting the charge. A certificate under the Costs in Criminal Cases Act 1967 was also refused because, although possession of Dr Hazelton's...

Jurisdiction
Australia
Judgment Date
01 July 2009
Procedural Posture
Criminal Prosecutions; Application for Costs and Certificates After Summonses Dismissed / Judgment on Costs
Outcome
Applications for costs under s 257C of the Criminal Procedure Act 1986 dismissed; certificates under s 2 of the Costs in Criminal Cases Act 1967 refused.
Legal Topics
['costs After Dismissed or Withdrawn Prosecutions' 'professional Costs Against a Public Prosecutor' 'certificates Under the Costs in Criminal Cases Act 1967' 'investigation of Alleged Clearing of Endangered Ecological Community' 'national Parks and Wildlife Act Offence']
['criminal Procedure' 'costs' 'environmental Law'] ['costs After Dismissed or Withdrawn Prosecutions' 'professional Costs Against a Public Prosecutor' 'certificates Under the Costs in Criminal Cases Act 1967' 'investigation of Alleged Clearing of Endangered Ecological Community' 'national Parks and Wildlife Act Offence']

Case Brief

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Procedural Posture

Criminal Prosecutions; Application for Costs and Certificates After Summonses Dismissed / Judgment on Costs

Legal Issues

  1. 1 ['Whether the defendants were entitled to professional costs under s 257C of the Criminal Procedure Act 1986 after the prosecutor did not proceed and the summonses were dismissed.' "Whether the prosecutor's investigation into whether the cleared vegetation was an endangered ecological community was conducted in an unreasonable or improper manner or involved an unreasonable failure to investigate relevant matters." 'Whether the proceedings were initiated without reasonable cause.' 'Whether certificates should be granted under s 2 of the Costs in Criminal Cases Act 1967.' "Whether the defendants' omission to serve Dr Hazelton's expert soil report before the hearing was reasonable in the circumstances."]

Ratio Decidendi

The defendants did not establish any basis under s 257D(1) of the Criminal Procedure Act 1986 for an award of professional costs. Although Dr Hazelton's report later undermined the prosecutor's case on soil type, the prosecutor's investigation was not unreasonable because Ms McKinley's report addressed the elements of the offence, including soil type, and she physically examined the soil and considered relevant mapping. The proceedings were not doomed to fail when commenced because there was evidence from Ms McKinley and Mr Goodwin capable of supporting the charge. A certificate under the Costs in Criminal Cases Act 1967 was also refused because, although possession of Dr Hazelton's...

Court Disposition

Applications for costs under s 257C of the Criminal Procedure Act 1986 dismissed; certificates under s 2 of the Costs in Criminal Cases Act 1967 refused.

Orders

  • ["The Defendants' applications for costs orders under s 257C of the Criminal Procedure Act 1986 are unsuccessful." 'The Court exercises its discretion not to grant a certificate under s 2 of the Costs in Criminal Cases Act 1967.']