D'Anastasi v Environment, Climate Change and Water NSW

[2011] NSWCA 374

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

D'Anastasi v Environment, Climate Change & Water NSW [2011] NSWCA 374

Hearing dates:

6 September 2011

Decision date:

02 December 2011

Before:

Campbell JA at [1]; Young JA at [2]; Sackville AJA at [103]

Decision:

Appeal allowed with costs.

The appellant is entitled to a declaration that Notice 1118170 issued to the appellant by an officer of the first respondent bearing date 1 September 2010 is void: the Court so declares.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL- has an appeal become spent- notice had expired- limitation period for prosecution of alleged offence had expired- section in Act purports to keep expired notices alive- Supreme Court does not have an advisory jurisdiction, however the Court retains a discretion to hear and determine an appeal which has been regularly commenced- Court is likely to exercise discretion where the decision the subject of the appeal is likely to affect other cases- Court proceeded to determine the appeal.

JUDICIAL REVIEW- construction of a statutory notice- notice to be construed according to what would be conveyed to the reasonable recipient of the notice- recipient may be required to make some enquiries but not to make enquiries of unrelated third parties.

JUDICIAL REVIEW- validity of a statutory notice- a statutory notice must define the "matter" in connection with which it was issued unless the governing statute operates in some special manner- the Court is not to be "precious or hypercritical" about the form of the notice- notice failed to indicate to the addressee the matter with which it was concerned- notice held to be invalid.

Legislation Cited:

Interpretation Act 1987, s 33
Land and Environment Court Act 1979, s 58
Pesticide Act 1999, s 5
Protection of the Environment Operations Act 1997, ss 3, 184, 186, 193, 195, 203, 211, 319A, Ch 7
Trade Practices Act 1974 (Cth), s 155

Cases Cited:

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Bonan v Hadgkiss [2007] FCAFC 113; 160 FCR 29
Clinch v Inland Revenue Commissioners [1974] QB 76
Commissioner of Police v Ombudsman [1985] 1 NZLR 578
Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367
Emirates v ACCC [2009] FCA 312; 255 ALR 35
Federal Commissioner of Taxation v Pilnara Pty Ltd [1999] FCA 1805; 96 FCR 82
Great Lakes Council v Mood [2007] NSWLEC 705; 157 LGERA 35
Hardie v Cooke [1990] 2 Qd R 351
Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652
In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257
Kioa v West [1985] HCA 81; 159 CLR 550
Kirk v Industrial Court of NSW [2010] HCA 1; 239 CLR 531
Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 438
Lucerne v Collins (1966) 86 WN (Pt 1) (NSW) 247; 14 LGERA 186
McCormack v Commissioner of Taxation [2001] FCA 1700; 114 FCR 574
Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 27 ALR 275
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54
Momcilovic v The Queen [2011] HCA 34
People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368; 39 ALR 565
Re Minister for Immigration; Ex parte Lam [2003] HCA 6; 214 CLR 1
Robinson v Becatea Pty Ltd [2004] NSWSC 310; 12 BPR 22,699
SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357
Seven Network Ltd v ACCC [2004] FCAFC 267; 140 FCR 170
Singapore Airlines Ltd v ACCC [2009] FCAFC 136; 260 ALR 244
Southon v Beaumont [2008] NSWLEC 12; 69 NSWLR 716

Category:

Principal judgment

Parties:

Charles D'Anastasi (Appellant)
Environment, Climate Change & Water NSW (First Respondent)
Gregory Abood (Second Respondent)

Representation:

Counsel:
J J Garnsey QC and J R Dupree (Appellant)
D Jordan (Respondents)
Solicitors:
Russo & Partners (Appellant)
Department of Environment, Climate Change and Water (Legal Services Branch) (Respondents)

File Number(s):

CA 2010/423014

 Decision under appeal 

Citation:

D'Anastasi v Environment Protection Authority and Anor [2010] NSWLEC 260

Date of Decision:

2010-12-16 00:00:00

Before:

Pain J

File Number(s):

40881 of 2010

Judgment

1. CAMPBELL JA : I agree with the orders prepared by Young JA. I agree with the reasons of Sackville AJA for so doing.

1. YOUNG JA : This is an appeal from Pain J of the Land and Environment Court. Her Honour dismissed an application for judicial review with respect to the validity of a notice issued by the second respondent, an authorised officer of the first respondent, under s 193 of the Protection of the Environment Operations Act 1997 ("POEO Act").

1. The application before her Honour was within Class 4 of the Land and Environment Court's jurisdiction so that this appeal is as of right under s 58 of the Land and Environment Court Act 1979 .

1. Section 193 of the POEO Act is as follows:

(1) An authorised officer may, by notice in writing given to a person, require the person to furnish to the officer such information or records (or both) as the officer requires by the notice in connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer.

(2) In the case of authorised officers appointed by the EPA, this section is not limited to matters in respect of which the EPA is the appropriate regulatory authority.

1. The second respondent, Mr G Abood, an authorised officer, acting pursuant to s 193, issued Notice 1118170 to the appellant. The time for complying was later extended by Notice 1119472.

1. The background to the notice was that the appellant appears to be connected with the management of three lots of land at Glenorie apparently owned by his mother. The appellant does not live on the subject land.

1. The Environment Protection Agency ("EPA") received reports of dead birds on the relevant land. On a site visit in February/March 2010, 60 dead birds were seen and 70 baits (apparently poisoned seed) collected. The EPA then commenced investigating suspected misuse of pesticides on the land.

1. The notice asks 54 questions concerning events in the management of the premises, visits to the premises, pest management at the premises, and pesticide handling at the premises in three different periods of months or weeks. Also required are any or all records relating to the use or application of pesticides at or on the premises between 1 July 2009 and 22 February 2010, 23 February 2010 and 2 March 2010, and 3 March 2010 and 1 July 2010.

1. It will have been noticed that s 193 limits the issue of notices to situations where there is a " connection with any matter within the responsibilities and functions of the regulatory authority that appointed the officer".

1. Thus it is necessary to cite the objects of the POEO Act as set out in s 3 and also s 184.

1. The objects of the POEO Act specified in s 3 include:

(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development,

...

(d) to reduce risks to human health and prevent the degradation of the environment by the use of mechanisms that promote the following:

(i) pollution prevention and cleaner production,

(ii) the reduction to harmless levels of the discharge of substances likely to cause harm to the environment,

(iii) the elimination of harmful wastes,

...

1. Section 184 of the POEO Act provides:

Powers may be exercised under this Chapter for the following purposes:

(a) for determining whether there has been compliance with or a contravention of this Act or the regulations or any environment protection licence, notice or requirement issued or made under this Act,

(b) for obtaining information or records for purposes connected with the administration of this Act,

(c) generally for administering this Act and protecting the environment.

1. It is also expedient to set out s 195(1) which is as follows:

(1) A notice under this Part may only require a person to furnish existing records that are in the person's possession or that are within the person's power to obtain lawfully.

1. It is an offence under s 211 to, without lawful excuse, neglect or fail to comply with a notice issued under Ch 7. It is also an offence to furnish any information knowing that it is false or misleading in a material respect. The maximum penalty for an individual is $250,000. For a continuing offence, a further penalty of $60,000 for each day the offence continues applies.

1. In her reasons at [23], the primary judge summarised the appellant's case as put before her as follows: the notice was invalid because it required inquiry to be made when there was no statutory basis to do so, contained questions which were impossible to answer, and was unfair because the appellant was required to answer on more than the basis of his knowledge, to be assessed at the time of providing the information or records. He was required to make inquiries and to convey the information received, yet would be at risk of prosecution under s 211 if the information turned out to be inaccurate. Her Honour then cited Great Lakes Council v Mood [2007] NSWLEC 705; 157 LGERA 35 as an example of a notice based on personal knowledge which used acceptable wording.

1. The primary judge rejected the appellant's case.

1. The appeal was heard on 6 September 2011, Mr J J Garnsey QC and Mr J Dupree appearing for the appellant and Mr D Jordan of counsel appearing for the respondents. [The first respondent is sometimes referred to as the Department, at other times the Environment Protection Authority or EPA - I will refer to it as the "EPA"].

1. After some discussion, it emerged that the questions for this Court to address were:

1. Whether the appeal had become spent;

2. Whether Notice 1118170 was a valid notice;

3. On the true construction of the notice, what the appellant was required to do;

4. Whether the notice properly construed was void for unreasonableness;

5. Other minor issues raised before the primary judge.

1. Having dealt with each of those matters in turn, I will conclude these reasons under the following heads:

6. General comments;

7. The result of the appeal.

1. Has the appeal become spent?

1. This issue arises because the notice had to be complied with by a period ten business days after the primary judge's decision of 22 December 2010. This was a date early in January 2011.

1. The appellant did submit an answer to it on the basis of its construction of the notice. The first respondent has not indicated whether or not it considers that the answer complies with the notice.

1. If the raison d' e tre for the notice was the sighting of dead birds between 26 February and 2 March 2010, the time for prosecution has expired and, semble, so has the power of investigation with respect to the incident.

1. Thus, the only effect if the judgment of Pain J in respect of the notice is left undisturbed is that, if there is a prosecution under s 211 of the POEO Act, the judge or magistrate may consider himself or herself bound in comity to follow it.

1. Although even the respondents might welcome an authoritative construction of s 193 of the POEO Act, it is not a legitimate exercise for a Supreme Court to give advisory opinions: In re Judiciary and Navigation Acts [1921] HCA 20; 29 CLR 257, however, it may be that Momcilovic v The Queen [2011] HCA 34 weakens this view in non-Federal matters in State Supreme Courts.

1. This Court examined this subject matter recently in People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253. In that case, it became clear near the end of the appeal that the result was of no current utility. The Court nonetheless continued and finalised the appeal.

1. The relevant principles were stated by Beazley JA with whom Allsop P and Handley AJA agreed in [12]-[14] as follows:

12 The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility.

13 As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned.

14 One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases.

1. Her Honour then cited a number of authorities, viz: Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [ 2003] FCAFC 70; 126 FCR 54; Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113; 160 FCR 29.

1. We should follow that recent decision of this court. The present case is not one where the decision is likely to affect other cases directly, but the principal questions being dealt with on the appeal will effectively define the limits of the power of the first respondent to issue notices calling for information. Thus, in my view, we should determine the appeal.

1. I should add that there is another factor which points in the same direction. Section 319A of the POEO Act purports to keep an expired notice alive. It is quite unclear what the scope of s 319A is. Not even Mr Jordan for the EPA was bold enough to claim that it could operate to allow the EPA to claim daily penalties indefinitely for a notice past its expressed expiry date. However, it may be that s 319A keeps the notice alive for some purposes so that it may be that the appeal is not properly to be classed as moot.

2. The validity of the Notice

1. The prime point made by the appellant was that the notice would need to identify the "matter" in connection with which the notice was issued and it did not do so.

1. Before going into the detail of this aspect of the appeal, it is necessary to describe the notice that was served on the appellant.

1. The notice, bearing date 1 September 2010, indicates that it was given by Mr Gregory Abood. It was addressed to "D'ANASTASI; CHARLES". Why the giver is noted with an honorific and the recipient is not even given the courtesy of being addressed in the usual way is unexplained.

1. The notice then sets out seven matters designated A-G under the heading "BACKGROUND". These are rather like recitals to a deed and I will refer to them as such.

1. Recital A noted that the addressee was involved in the management of specified land which was designated "the premises".

1. Recitals C and D are significant and I will set them out in full:

"C. On 26 February 2020, the Department of Environment Climate Change and Water (DECCCW) received an Environment Line report of dead birds in an area in the general vicinity of the premises. DCCW officers inspected the premises between 26 February 2010 and 2 March 2010, inclusive, and observed and collected over 70 baits from the premises. During this time DECCW officers observed that most of these baits were positioned at rabbit warren entrances or next to the base of olive tree trunks. During that time, DECCW officers also observed and collected over 60 dead native birds at the premises many of which were positioned in close proximity to the observed baits.

D. DECCW is further investigating the suspected misuse of pesticides at the premises and requires details of the persons who visited, worked and/ or used pesticide(s) at the premises.

1. The next heading is "DEFINITION" which purports to deal with the definition of "pesticide" in s 5 of the Pesticide Act 1999. This definition depends on the definition in the Agvet Code, but, unfortunately, the Act does not specify whether the Agvet Code definitions are those in existence when the Pesticide Act was passed in 1999 or the current ones.

1. The next heading is "REQUIREMENT TO PROVIDE INFORMATION AND/OR RECORDS".

1. I will not set out all the questions. However, they asked for details of all persons involved in management of the premises after 1 July 2009, details of all visitors to the premises between 23 February 2010 and 2 March 2010, details of any pests on the premises and attempts to deal with them from 1 July 2009 to 3 March 2010 (31 questions, some with sub-questions), details of pesticide use 3 March 2010 - 1 July 2010 (15 questions). Some of the questions such as (e) asked what the purpose was of each visit to the premises.

1. It is necessary to consider whether the notice fairly indicates to the addressee the matter within the responsibilities and functions of the regulatory authority about which the officer requires information.

1. In Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368; 39 ALR 565, the Full Federal Court (Northrop, Deane and Fisher JJ) had to deal with the validity of a notice issued by the Trade Practices Commission under s 155 of the Trade Practices Act 1974 (Cth).

1. The Court ruled that that Act required the giver of the notice to specify in the notice that the information or documents sought were information or documents "relating" to one or more "matters" of a kind described in the legislation about which the giver was entitled to serve the notice.

1. This requirement is not unique to the Trade Practices Commission. It has been the standard for statutory notices for a long time; see eg Lucerne v Collins (1966) 86 WN (Pt 1) (NSW) 247; 14 LGRA 186.

1. In SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, Fisher and French JJ said about s 155 of the Trade Practices Act (p 370):

the description of the relevant "matter" must go beyond a mere assertion that it constitutes or may constitute a contravention of some identified section. The notice must disclose the necessary relationship between the information sought and the matter in respect of which it is sought. This requires a sufficient description of the "matter" to enable the relationship to be discerned.

1. The Pyneboard case was affirmed on appeal [1983] HCA 9; 152 CLR 328, but the High Court did not deal with the aspect of the Federal Court's decision relevant to the present case.

1. Pyneboard in the Federal Court has been cited on many occasions since. Apart from situations where the court has declared the governing statute to operate in a special manner (eg Federal Commissioner of Taxation v Pilnara Pty Ltd [1999] FCA 1805; 96 FCR 82) it has not been doubted on this point.

1. There are some situations where it will be abundantly clear what is the foundation of the notice: Pilnara is one instance. The decision of Sackville J (as his Honour then was) in McCormack v Commissioner of Taxation [2001] FCA 1700; 114 FCR 574 is another. Another example outside the income tax field can be found in the decision of Byrne J in Hardie v Cooke [1990] 2 Qd R 351, 354-5. However, that situation is not present in the instant case.

1. I should note that the cases make it clear that courts must not be too "precious or hypercritical" about the form of the notice so long as it is clear; see eg Pyneboard at 57 FLR 375; 39 ALR 570-1. See also the summaries of the principles by the Full Federal Court in Seven Network Ltd v ACCC [2004] FCAFC 267; 140 FCR 170, 182-3 [49] and in Singapore Airlines Ltd v ACCC [2009] FCAFC 136; 260 ALR 244, 250.

1. In Emirates v ACCC [2009] FCA 312; 255 ALR 35, 44 [30], Middleton J, having quoted the summary from Seven Network , added:

If the matter is defined too widely in a notice, so as to include facts or circumstances which could not, even after allowing for undiscovered facts, be a contravention, then the issue of the notice is not a valid exercise of power.

1. Mr Jordan conceded in argument that the notice must probably specify a matter unless it was so clear that it need not.

1. Although Mr Jordan says that recitals C and D show the foundation of the notice, it is difficult to accept this submission. This is because, although recital C deals with a particular set of incidents which occurred between 26 February and 3 March 2010, many of the questions relate to happenings before and after this period.

1. Recital D deals with misuse of pesticides on the premises generally. It does not specify what pesticide is the subject of the investigation nor the substance of the suspected misuse.

1. Sackville AJA put to Mr Jordan: "Can it be a proper identification of a matter simply to say the department is investigating the suspected misuse of pesticides at the premises? When? By whom? Which pesticides? Which possible offence? None of these are referred to. It could mean anything."

1. All Mr Jordan could reply was: "It has to be read in the context of the prior paragraphs and that would be natural for that to be done", which, with respect, was no answer at all.

1. Mr Jordan also said that in an investigation one does not know what one will find so that the notice has to be a tad vague. One can acknowledge the truth of that statement, but that does not prevent the notice from telling the recipient that the EPA is investigating the misuse of pesticides in baits laid outside rabbit warrens or around olive trees on the premises in late February 2010 and needs information to assist in that investigation.

1. It seems to me that the notice fails the test of validity as it failed to indicate to the addressee the matter with which it was concerned.

3. The construction of the Notice

1. There are various serious matters of construction that would need to be addressed on the basis that the notice was valid. The principal matters are: (1) what is meant by "information"?; (2) Does the notice require the addressee to make enquiries or merely to answer from his her or its own knowledge (probably plus what can easily be ascertained)?

1. Basically, "information" in the current context means factual material which will guide the mind of the person asking.

1. Can a request be made for information under s 193 if the person asking already has the factual material?

1. In argument, Campbell JA put to Mr Garnsey that, when one puts in a request for information, one is seeking what the other person knows or believes but the enquirer does not.

1. The ensuing debate moved away from this focus to whether "information" means, not only what someone knows, believes or has been told, but also that which the addressee could find out by enquiry. I will return to this point.

1. The word "information" in the ordinary dictionaries is said to mean anything that someone has seen, been told or has read, but the focus is on factual material. However, in Commissioner of Police v Ombudsman [1985] 1 NZLR 578, 586, Jeffries J considered the word had a very broad meaning and covered "any knowledge, however gained or held".

1. I believe the answer to the question I posed above is "yes". The request is for the addressee to disclose information held by the addressee and the fact, if it be the fact, that the enquirer may have the same information is irrelevant.

1. This is relevant in the instant case because on site on 2 March 2010, Mr Abood asked Mr D'Anastasi 291 questions about his investigation which Mr D'Anastasi answered, waiving any privilege he might have had. Mr Abood thus had much of the information which he was seeking by notice in September.

1. The next objection is that the notice should not require the addressee to deal with questions to which he or she does not know the answer, but may be able to find out by enquiry of others.

1. This submission is weakened by the fact that s 195 of the POEO Act specifically mentions that a person need not produce a document not in his or her possession or power, but there is no equivalent provision with respect to the provision of information.

1. The primary judge rejected this submission saying at [52]:

The construction of s 193 in the context of the PEO Act and the Pesticides Act set out above and the numerous authorities cited support the EPA's submission that the notice issued under s 193 is not restricted to matters within the personal knowledge of the recipient and there is no basis for reading such a requirement into the statute. A notice under s 193 can require that person to make inquiries of third parties in order to provide information about "all persons". Such absolute terms in the notice are valid.

1. The appellant says that this is no answer to his submission. A qualified answer would not excuse the person replying from criminal responsibility. The submissions note (see [25]-[29] in Orange Book p 11) that the notice not only requires the appellant to find out factual information from others, but also requires him, to answer to their state of mind.

1. Mr Garnsey put that there was significance in the use of the word "furnish" which had the flavour of providing something that one already had. I do not consider that the word "furnish" means anything more than "provide" and does not have the effect claimed by Mr Garnsey.

1. There are passages in the Pyneboard case and in the associated case of Dunlop Olympic Ltd v Trade Practices Commission (1982) 40 ALR 367 that say that it is not objectionable that a statutory notice requires the addressee to make enquiries in order to provide the requested information.

1. In Pyneboard the Court said at 57 FLR 376; 39 ALR 571 that the fact that the addressee might be unable to supply the information was irrelevant to the question of validity.

1. The Dunlop case at 371 takes the common sense view that ordinarily the addressee is not required to act as a detective. However, he, she or it is required to provide information which might be held in the addressee's computer or filing system, or in the heads of its employees and at least some of its agents. Furthermore, as Hardie v Cooke shows (p 355), the notice is not bad merely because the addressee might have to spend considerable time searching through its own records to reacquaint itself with the necessary information.

1. The "common sense view" also comes through other leading cases. In Robinson v Becatea Pty Ltd [2004] NSWSC 310; 12 BPR 22,699, Campbell J (as his Honour then was) noted at [49] that the general approach to the construction of notices was by reference to what would be conveyed to the reasonable recipient of the notice. That will in itself tend against reading it as a requirement to do the impossible.

1. In Clinch v Inland Revenue Commissioners [1974] QB 76, 92, Ackner J dealt with the complaint by the recipient of a statutory notice by tax authorities that it would take him five months of full time work to comply with it. His Lordship said that the recipient complained that he:

would have to make inquiries as to what the position was. In my judgment the notice imposes no such obligation. The notice does not require him to carry out researches in order to obtain knowledge which he never had. He must examine [his] records... and he must seek to refresh his knowledge from any sources which he considers are capable of providing such refreshment.

1. Clinch was followed with respect to a notice under s 155 of the Trade Practices Act 1974 in Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 27 ALR 275, 303.

1. Of course, the construction of the notice must depend to some extent on the terms of the relevant statute, but the above citations give the general approach to the problem.

1. Thus, in my view the notice must be construed as only requiring the addressee to react to it in the manner noted in the Dunlop case and the previous paragraphs. If the notice were otherwise valid, so construed it would not be invalidated because it requires some search for information, but does not require the addressee to make extensive enquiries of others.

1. Insofar as it is objected that the addressee is required to state the purpose of each visitor when attending the premises, if the visitor has told the addressee that purpose or if the addressee has a belief as to the purpose (at least a belief founded on fact) there is no difficulty in complying with the notice. Otherwise the answer that the addressee has no information about the purpose would suffice.

4. Was the Notice void for unreasonableness?

1. I really need not deal with this question in the light of my previous reasons, but, in accordance with the procedure endorsed by the High Court I must do so, though I will do so briefly.

1. The appellant submits that the notice is unreasonable in its terms and the decision to issue it is unreasonable and harsh and oppressive.

1. The primary judge rejected those submissions. However, it would seem that in part she did so because she could not understand how the principles put forward by counsel could be applied to invalidate the notice in the present case.

1. The primary judge noted at [58] that submissions were put to her based on Kioa v West [1985] HCA 81; 159 CLR 550, 584 and Re Minister for Immigration; Ex parte Lam [2003] HCA 6; 214 CLR 1 that there is a duty to act fairly in the issuing of notices and that there is a legitimate expectation that that will occur in this case. The appellant submitted that common law principles of fairness and due process were required to be applied in this statutory process.

1. The primary judge ruled at [58] that, "while that general submission can be made, the particular statutory scheme must be considered. There are no procedural requirements, such as the giving of a notice of an intention to issue a notice, in s 193 or elsewhere in the POEO Act. No particular form of notice is specified in the POEO Act".

1. The primary judge also noted that in Southon v Beaumont [2008] NSWLEC 12; 69 NSWLR 716, Jagot J had considered the statutory scheme under the POEO Act and stated at [39] that the Act was directed to a wide range of events of differing character, seriousness and urgency which include immediate harm or risk of harm. This was relevant in construing s 203 and, the primary judge impliedly said, to s 193 as well.

1. The primary judge noted at [62]:

The Applicant also submitted that a notice should not be unreasonable in the Wednesbury sense because the notice is impossible to answer. It unreasonably requires inquiries of third parties and the Applicant would not be able to check the veracity of these in order to answer the notice which requires that "all persons" be identified.

1. However, she did not pursue this submission as she considered the submissions as to its ambit were unclear.

1. I do not consider that the notice was void for unreasonableness in any sense of that term in administrative law. In any event, as the Full Federal Court said in Pyneboard at FLR 375; ALR 571-2 , this is not the vital question: the vital question is whether the information sought is capable of being properly regarded as related to the matter stated in the notice as that being investigated.

5. Other matters

1. The trial spent a considerable amount of time in dealing with matters which are really peripheral. However, I must briefly consider them.

1. Mr Garnsey put that at least some of his complaints were that jurisdictional facts were absent and their absence invalidated the notice.

1. This submission was rejected by the primary judge who followed the decision in Southon v Beaumont, a decision on the allied section, s 203.

1. I agree with that view: this case has nothing to do with jurisdictional facts. The search for involvement of a "jurisdictional fact" unfortunately seems to be a common preoccupation with the bar. The vital question is whether the notice was ultra vires.

1. The appellant then submits that when one sees such a wide power as that contained in s 193, with draconian penalties for non-compliance, one must read the power strictly. This means that one must, at least, require the power to be exercised to fulfil the purposes of s 184.

1. The primary judge deliberately did not decide this question. She held that s 186 of the POEO Act also applied to the Pesticides Act 1999. Thus, a notice could be issued in connection with an investigation with respect to breaches of that Act.

1. This approach again overlooks the requirement that the notice must not just have some connection with the Pesticides Act , it must tell the addressee more specifically what pesticide the notice dealing with and what alleged misuse is concerning the EPA.

1. The respondents point to s 33 of the Interpretation Act 1987 which tells us that we should endeavour to interpret legislation to uphold rather than destroy the purpose of the relevant legislation.

1. We must, of course, observe what that statute says. However, we must also bear in mind what Heydon J said in Kirk v Industrial Court of NSW [2010] HCA 1; 239 CLR 531, 590 [122] , that supervising courts must be careful to see that specialist courts and tribunals are not so carried away with the overarching importance of the legislation which they are created to police that they lose sight of basic principles of fairness and justice.

6. General comments

1. This litigation is quite odd in many ways.

1. First, the orders sought in the summons were not well framed. In particular, I never thought I would ever see a claim for certiorari being made to a statutory court.

1. Secondly, most of the issues which the primary judge was asked to focus upon were not the essential matters which required consideration.

1. Thirdly, it is strange that our community, which recognises as almost sacred the right of persons charged with murder, rape or serious theft not to incriminate themselves, with respect to a farmer who has allegedly misused a pesticide, not only removes his or her right to silence but actually allows the potential prosecutor to administer interrogatories far more searching than would be allowed in a civil court. However, if the legislature has mandated that procedure, there is limited ability in a court to protect citizens.

1. Fourthly, I would suggest that government authorities seeking to use the notice procedure ensure that they not only issue notices that comply with the principles of Administrative Law, but seek to make them as brief as practicable.

7. The result of the appeal

1. It follows that I would allow the appeal with costs.

1. The appellant is entitled to a declaration that Notice 1118170 issued to the appellant by an officer of the first respondent bearing date 1 September 2010 is void: the Court so declares.

1. SACKVILLE AJA: I agree with the orders proposed by Young JA and, subject to what appears below, I agree generally with his Honour's reasons. I deal with the issues in the same order and under the same headings as Young JA.

Has the Appeal Become Spent?

1. In the circumstances outlined by his Honour, this appeal comes perilously close to inviting the Court to give an advisory opinion on the validity of a notice, compliance with which can now serve little or no useful practical purpose. However, on the authority of People with Disability Australia Inc v Minister for Disability Services [2011] NSWCA 253, and bearing in mind the terms of s 319A of the Protection of Environment Operations Act 1997 (" POEO Act "), I think that it is permissible for the Court to determine the validity of the notice.

Validity of the Notice

1. I agree with Young JA that the notice does not comply with s 193(1) of the POEO Act because it does not identify a matter of the kind contemplated by s 193(1). The notice does not identify a matter within the responsibilities and functions of the regularity authority, in connection with which the information is required.

1. In addition to the points made by Young JA, it is of some significance that the notice requires the appellant to provide a wide range of information relating to the periods between:

• 1 July 2009 and 22 February 2010;
• 23 February 2010 and 2 March 2010; and
• 3 March 2010 and 1 July 2010.

1. The report of dead birds in the vicinity of the premises was received by the Department of Environment, Climate Change and Water (" DECCW ") on 26 February 2010. DECCW apparently inspected the premises between 26 February 2010 and 2 March 2010 and recovered baits from the premises.

1. There was nothing in the material before the Land and Environment Court to indicate the " matters " in connection with which it was necessary or appropriate to seek information relating to the period between 1 July 2009 and 2 March 2010, a period of up to eight months before the apparent poisoning of the birds. What was the " matter ", for example, in connection with which the appellant was asked whether any measures had been taken during that period to eradicate, manage or otherwise mitigate the effect of pests without using any pesticides? Similarly, what was the " matter " in connection with which the appellant was asked whether any person used, applied or otherwise dealt with pesticides during the period between 3 March 2010 and 1 July 2010?

Construction of the Notice

1. As the notice was invalid, I do not think it necessary to consider the precise extent to which the appellant would have been obliged to make enquiries had the notice been validly issued. It is enough to say that I doubt that s 193 of the POEO Act, on its proper construction, authorises notices that can require the recipient to make enquiries of third parties with whom that recipient has no relevant association, such as an employer-employee relationship.

Unreasonableness

1. I agree with Young JA that the critical question is whether the notice was authorised by s 193 of the POEO Act. It is not apparent how a discussion of so-called Wednesbury unreasonableness advances matters.

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Decision last updated: 02 December 2011