MONOGRAPH 40 volume 1

160 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Appendix D LEC cases applying the costs principles stated in EPA v Barnes The following statements regarding costs were made in EPA v Barnes [2006] NSWCCA 246 per Kirby J (Mason P and Hoeben J agreeing): At [78]: The assertion by the appellant that the penalty imposed was “a miniscule proportion of the maximum penalty” is not entirely accurate. The individual fines (which total $4,500) had, in each case, been discounted by 25% to take account of the pleas of guilty. But, more than that, the costs of $15,727.13 were an important aspect of the punishment of Mr Barnes. Quite apart from his own costs, he was required, by reason of his breaches of the law, to pay slightly in excess of $20,000 . At [88]: Returning to the penalty imposed upon Mr Barnes. As a matter of first impression, the fines imposed appeared unduly lenient, suggesting error. However, the fines were part only of the penalty. Mr Barnes was obliged to pay substantial costs. Her Honour made it clear that, but for that fact, the fines she would have imposed would have been much higher . The following LEC judgments applied the principles cited in paragraphs [78] and/or [88] of EPA v Barnes (the judgments are listed by year in reverse chronological order): Cumberland Council v Khoury [2017] NSWLEC 14 at [106] EPA v Complete Asbestos Removal Pty [2016] NSWLEC 167 at [134] EPA v Morgan Cement International Pty Ltd [2016] NSWLEC 140 at [145] EPA v Foxman Environmental Development Services (No 2) [2016] NSWLEC 120 at [125] EPA v Environmental Treatment Solutions Pty Ltd [2015] NSWLEC 160 at [108] Warringah Council v ProjectCorp Aust Pty Ltd [2015] NSWLEC 141 at [259] Wingecarribee Shire Council v O’Shanassy (No 6) [2015] NSWLEC 138 at [226] EPA v Alcobell Pty Ltd [2015] NSWLEC 123 at [119] Director-General, Dept of Environment and Climate Change v Hudson (No 2) [2015] NSWLEC 110 at [186] EPA v Wyanga Holdings Pty Ltd [2015] NSWLEC 78 at [160] Leichhardt Council v Geitonia Pty Ltd (No 7) [2015] NSWLEC 79 at [64] EPA v Causmag Ore Co Pty Ltd [2015] NSWLEC 58 at [123] Willoughby City Council v Livbuild Pty Ltd [2015] NSWLEC 34 at [110] EPA v Truegain Pty Ltd (No 4) (2014) 206 LGERA 1; [2014] NSWLEC 179 at [132] Bankstown City Council v Hanna (2014) 205 LGERA 39; [2014] NSWLEC 152 at [176] EPA v Orica Aust Pty Ltd [2014] NSWLEC 103; (2014) 206 LGERA 239 at [209] Simpson v Office of Environment and Heritage (2014) 205 LGERA 17; [2014] NSWLEC 34 at [52] Port Macquarie-Hastings Council v Notley (No 2) [2013] NSWLEC 220 at [92] Newcastle Port Corp v MS Magdalene Schiffahrts GmbH [2013] NSWLEC 210 at [160] Mouawad v Hills Shire Council (2013) 199 LGERA 28; [2013] NSWLEC 165 at [195] Harrison v Harris (2013) 195 LGERA 79; [2013] NSWLEC 105; at [171] EPA v Forestry Commission (NSW) [2013] NSWLEC 101 at [169] North Sydney Council v Perini (No 2) [2013] NSWLEC 91 at [175] Chief Executive, Office of Environment and Heritage v Ausgrid (2013) 199 LGERA 1; [2013] NSWLEC 51, at [85] Chief Executive, Office of Environment and Heritage v Rummery (2012) 192 LGERA 314; [2012] NSWLEC 271, at [192]