Carter v Wall [No. 2] [2003] NSWLEC 94

Carter v Wall [No. 2] [2003] NSWLEC 94

Section 6 of the Fines Act 1996 does not apply to the assessment of costs in class 5 proceedings where costs are to be determined under s 52(2) of the Land and Environment Court Act 1979, as the Court is functus officio and exercises no discretion in the assessment process; enforcement is governed by s 53 of the Act. The prosecutor's entitlement to a moiety of the fine may be granted under s 122 of the Fines Act, and the omission to apply previously may be corrected under the slip rule.

Parties
Prosecutor: Peter Carter; Defendant: Verna Wall
Jurisdiction
Australia
Judgment Date
16 June 2003
Procedural Posture
Class 5 Proceeding (criminal/environmental) / Post Conviction; Application Regarding Costs
Outcome
Defendant's motion dismissed; prosecutor awarded a moiety of the fine
Legal Topics
Assessment of Costs, Application of Fines Act to Costs, Judicial Discretion on Costs, Enforcement of Fines, Slip Rule
Environmental Law Criminal Procedure Costs Assessment of Costs Application of Fines Act to Costs Judicial Discretion on Costs Enforcement of Fines Slip Rule

Case Brief

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Parties

Peter Carter

Prosecutor

Verna Wall

Defendant

Procedural Posture

Class 5 Proceeding (criminal/environmental) / Post Conviction; Application Regarding Costs

Legal Issues

  1. 1 Whether s 6 of the Fines Act 1996 applies to the assessment of costs in class 5 proceedings under s 52 of the Land and Environment Court Act 1979
  2. 2 Extent of the Court's discretion under s 52 regarding quantum of costs
  3. 3 Jurisdiction to order a moiety of the fine for the prosecutor under s 122 of the Fines Act

Ratio Decidendi

Section 6 of the Fines Act 1996 does not apply to the assessment of costs in class 5 proceedings where costs are to be determined under s 52(2) of the Land and Environment Court Act 1979, as the Court is functus officio and exercises no discretion in the assessment process; enforcement is governed by s 53 of the Act. The prosecutor's entitlement to a moiety of the fine may be granted under s 122 of the Fines Act, and the omission to apply previously may be corrected under the slip rule.

Court Disposition

Defendant's motion dismissed; prosecutor awarded a moiety of the fine

Orders

  • Order for defendant to pay prosecutor's costs as agreed or taxed (order of 22 August 2002) confirmed.
  • Defendant's notice of motion (17 February 2003) dismissed.