Filipowski v Terminals Pty Ltd and Ethell [1999] NSWLEC 233

Filipowski v Terminals Pty Ltd and Ethell [1999] NSWLEC 233

The defendants should pay the prosecutor's costs for the s 27(1) proceedings up to and including 27 August 1998 because the defendants were convicted and no circumstances justified a contrary order. No order should be made for costs after that date because neither side was successful on the disputed discharge amount, the issue was not critical to penalty, the prosecutor was not shown to have acted unfairly in relation to the Report Form, and there was no basis to award costs against the prosecutor. In the s 28(1) proceedings, Mr Ethell pleaded guilty and no circumstances warranted departing from an order that he pay the prosecutor's costs.

Jurisdiction
Australia
Judgment Date
07 October 1999
Procedural Posture
Class 5 Summary Criminal Prosecutions for Offences Under the Marine Pollution Act 1987 / Final Orders on Conviction, Penalties and Costs After Guilty Pleas
Outcome
Terminals Pty Ltd and Gerard Ethell were convicted. Terminals Pty Ltd was fined $30,000 in proceedings 50016 of 1998; Gerard Ethell was fined $7,000 in proceedings 50017 of 1998 and $1,000 in proceedings 50136 of 1998. Costs were awarded to the prosecutor as specified, with no order for costs for the later parts of...
Legal Topics
['marine Pollution Offences' 'discharge of Nonyl Phenol Into Port Botany' 'costs in Summary Proceedings' 'sentencing and Fines']
['environmental Law' 'criminal Law' 'costs'] ['marine Pollution Offences' 'discharge of Nonyl Phenol Into Port Botany' 'costs in Summary Proceedings' 'sentencing and Fines']

Case Brief

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Procedural Posture

Class 5 Summary Criminal Prosecutions for Offences Under the Marine Pollution Act 1987 / Final Orders on Conviction, Penalties and Costs After Guilty Pleas

Legal Issues

  1. 1 ['What costs orders should be made in the s 28(1) proceedings after Mr Ethell pleaded guilty.' 'What costs orders should be made in the s 27(1) proceedings before and after the hearing on 27 August 1998.' 'Whether the prosecutor acted unfairly by failing to produce the Sydney Ports Corporation Marine Response Report Form before or during the hearing.' 'Whether the defendants should obtain costs, including indemnity costs, for the proceedings concerning the amount of the discharge.']

Ratio Decidendi

The defendants should pay the prosecutor's costs for the s 27(1) proceedings up to and including 27 August 1998 because the defendants were convicted and no circumstances justified a contrary order. No order should be made for costs after that date because neither side was successful on the disputed discharge amount, the issue was not critical to penalty, the prosecutor was not shown to have acted unfairly in relation to the Report Form, and there was no basis to award costs against the prosecutor. In the s 28(1) proceedings, Mr Ethell pleaded guilty and no circumstances warranted departing from an order that he pay the prosecutor's costs.

Court Disposition

Terminals Pty Ltd and Gerard Ethell were convicted. Terminals Pty Ltd was fined $30,000 in proceedings 50016 of 1998; Gerard Ethell was fined $7,000 in proceedings 50017 of 1998 and $1,000 in proceedings 50136 of 1998. Costs were awarded to the prosecutor as specified, with no order for costs for the later parts of...

Orders

  • ['In proceedings 50016 of 1998, Terminals Pty Ltd is convicted of the offence with which it is charged.' 'In proceedings 50016 of 1998, Terminals Pty Ltd is fined the sum of $30,000 to be paid to the Registrar of the Court within one month of the date of the judgment.' 'In proceedings 50016 of 1998, Terminals Pty...