DWD Project Pty Ltd v Northern Territory Environment Protection Authority
[2022] NTSC 37
•23 May 2022
CITATION:DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37
PARTIES:DWD PROJECT PTY LTD
(ACN 601 276 108)
AND
ANTHONY, Michael Adrian
v
NORTHERN TERRITORY ENVIRONMENT PROTECTION AUTHORITY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: Appeal from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 35 of 2021 (22037655)
LCA 36 of 2021 (22037649)DELIVERED ON: 23 May 2022
HEARING DATE: 3 May 2022
JUDGMENT OF: Burns J
REPRESENTATION:
Counsel:
Appellants:D Robinson
Respondent: T Moses
Solicitors:
Appellants:Clayton Utz
Respondent: Hutton McCarthy
Judgment category classification: C
Judgment ID Number: Bur2207
Number of pages: 54
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37
No. LCA 35 of 2021 (22037655)
No. LCA 36 of 2021 (22037649)
IN THE MATTERS of appeal under the Local Court (Criminal Procedure) Act 1928 (NT)
BETWEEN:
DWD PROJECT PTY LTD
(ACN 601 276 108)
First Appellant
AND:
MICHAEL ADRIAN ANTHONY
Second Appellant
AND:
NORTHERN TERRITORY ENVIRONMENT PROTECTION AUTHORITY
Respondent
CORAM: Burns J
REASONS FOR JUDGMENT
(Delivered 23 May 2022)
These proceedings are appeals from convictions and penalties imposed by a Judge of the Local Court of the Northern Territory (the primary Judge). Each of the appellants were charged with an offence under s 80(1) of the Waste Management and Pollution Control Act 1989 (NT) (the WMPC Act) of intentionally contravening or intentionally failing to comply with the requirements of an amended pollution abatement notice issued by the respondent on 1 June 2020.
A contested hearing took place in which virtually all of the prosecution material was tendered without objection. Only one prosecution witness was required for cross-examination. The appellants led no evidence.
After the hearing, on 1 October 2021 the primary Judge convicted each of the appellants of the offences charged and, after the parties made submissions on sentence, the first appellant, DWD Project Pty Ltd (DWD) was fined $250,000.00 and the second appellant, Michael Anthony, the sole director and shareholder of DWD, was fined $50,000.00. Each appellant was also ordered to pay a victim assistance levy, and costs and disbursements incurred by the respondent.
The respondent, the Northern Territory Environment Protection Agency (the NT EPA, or the respondent) is a body corporate established by the Northern Territory Environment Protection Authority Act 2012 (NT).
Background
On 20 October 2015, DWD became the owner of Lot 5280, Town of Darwin, also known as 4 Mavie Street, Darwin. Adjoining Lot 5280 are Lots 10881 and 10882, known as 2 Stokes Hill Road, Darwin and 41 Stokes Hill Road, Darwin respectively. Both Lots 10881 and 10882 are vacant Crown Land. Each of these three parcels of land have a frontage to Darwin Harbour. For convenience, I will refer to these parcels of land collectively as “the premises”.
It was alleged that since October 2015, DWD had dumped a large volume of uncontrolled fill material on, and in the water immediately adjacent to, the premises. The material consisted of steel and steel mesh, concrete blocks, tiles, electric cabling, metal wire and various plastics. Some examination of the dumped material was conducted. Testing of concrete-like material recorded a pH of 11 which is highly basic/alkaline, and is a listed waste as defined under the Pollution Control (Administration) Regulations 1998 (NT). Testing also showed the presence of arsenic, copper, lead, zinc, asbestos, PFAS, and insecticide contaminants. The volume of dumped material is estimated to be approximately 13,430 m³, of which 4,730 m³ was deposited on Lot 5280 and 8,700 m³ on Lots 10881 and 10882.
The respondent became aware of the alleged dumping on or about 24 April 2018. On that date, officers of the respondent attended the premises and observed significant amounts of waste material, and that this material was being, or had been, bulldozed over the edge of the premises into Darwin Harbour. On 27 April 2018, an officer of the respondent issued a written direction to Mr Anthony to immediately prevent the further deposition/disposal of waste or other materials used in land reclamation on the premises.
On 12 October 2018, the respondent issued pollution abatement notices (PANs) to DWD and Mr Anthony pursuant to s 77 of the WMPC Act. These notices required the appellants to:
(a) provide a Waste Removal Management Plan to the respondent by 31 October 2018;
(b) provide a Waste Sampling, Classification, Quality Assurance and Disposal Plan to the respondent by no later than 31 October 2018;
(c) remove all wastes and contaminants that had been used to fill and/or reclaim land at the premises since 20 October 2015 by 15 December 2018;
(d) return the land/sea boundary of the premises to the boundary identified in aerial imagery of the premises from 30 June 2016 by 15 December 2018; and
(e) provide specified reports to the respondent evidencing compliance with the requirements of the PANs by 30 March 2019.
On 10 January 2019 revised PANs were issued to DWD and Mr Anthony extending the time for compliance. In the present proceedings these have been referred to as the amended PANs. These notices required the appellants to:
(a) provide a Waste Removal Management Plan to the respondent by 1 February 2019;
(b) provide a Waste Sampling, Classification, Quality Assurance and Disposal Plan to the respondent by no later than 1 February 2019;
(c) remove all wastes and contaminants that had been used to fill and/or reclaim land at the premises since 20 October 2015 by 1 July 2019;
(d) return the land/sea boundary of the premises to the boundary identified in aerial imagery of the premises from 30 June 2016 by 1 July 2019; and
(e) provide specified reports to the respondent evidencing compliance with the requirements of the PANs by 30 August 2019.
On 1 June 2020 further amended PANs were issued to DWD and Mr Anthony. These further amended PANs issued to each of the appellants were in substantially the same form. Each of the further amended PANs required the appellants to:
(a) provide a Waste Removal Management Plan to the respondent by no later than 17 July 2020;
(b) provide a Waste Sampling, Classification, Quality Assurance and Disposal Plan to the respondent by no later than 17 July 2020;
(c) remove all wastes and contaminants that had been deposited at the premises since 20 October 2015 by no later than 30 November 2020;
(d) return the land/sea boundary of the premises to the boundary set out in aerial imagery of the premises from 30 June 2016 by no later than 30 November 2020; and
(e) provide specified reports to the respondent evidencing compliance with the requirements of the further amended pollution abatement notices by no later than 18 December 2020.
It was not contested that the appellants did not comply with the PANs. Prosecutions under three separate statutory provisions were commenced against the appellants. These prosecutions are summarised as follows:
(a) each appellant was charged on information for an indictable offence alleging a contravention of s 83(1) of the WMPC Act (the s 83 charges). This offence carries a maximum penalty of five years’ imprisonment for an individual. Those charges were laid on 16 April 2019;
(b) each appellant was charged on complaint with summary offences under s 75 of the Planning Act 1999 (NT) (the Planning Act). The offence created by s 75 of the Planning Act is one of intentionally using or developing land where the use or development contravenes the planning scheme that applies to the land and the person charged is reckless as to that result (the Planning Act charges). This offence is punishable by a fine only. Each complaint was laid in the Local Court on or about 2 April 2020;
(c) each appellant was charged with the offence under s 80(1) of the WMPC Act of intentionally failing to comply with the PANs that are the subject of the present appeals (the PAN charges). This offence is punishable by a fine only. These charges were laid on 24 November 2020.
The s 83 charges are, as I understand it, still before the Local Court. Those charges are indictable, but may be dealt with summarily if the Court, the defendant and the prosecutor all consent. As I understand it, the appellants declined to consent to summary jurisdiction on 18 November 2020, but the matters remain in the Local Court pending determination of a privilege claim in relation to documents produced as a result of a summons issued by the respondent to a third party.
The Planning Act charges are currently before the Local Court. The appellants have made an application to the Local Court for the Planning Act charges to be stayed pending the hearing and determination of the “more serious” s 83 charges. I understand that this application for a stay is listed for hearing in the Local Court on 7 June 2022.
The appellants made an application to the Local Court for the hearing of the present charges to be adjourned pending the hearing and determination of the s 83 charges. That application was refused on 13 September 2021.
The Waste Management and Pollution Control Act 1998 (NT)
The power to issue a PAN is found in s 77 of the WMPC Act, which provides:
77 NT EPA may issue pollution abatement notices
The NT EPA may issue a pollution abatement notice in the approved form to a person who:
(a) the NT EPA believes on reasonable grounds has committed or may commit an offence against section 83 or has contravened or failed to comply with section 12; or
(b) who is the owner or occupier of land that is polluted.
Section 12 of the WMPC Act provides:
12 General environmental duty
(1)A person who:
(a) conducts an activity that causes or is likely to cause pollution resulting in environmental harm or that generates or is likely to generate waste; or
(b) performs an action that causes or is likely to cause pollution resulting in environmental harm or that generates or is likely to generate waste,
must take all measures that are reasonable and practicable to:
(c) prevent or minimise the pollution or environmental harm; and
(d) reduce the amount of the waste.
(2) Without limiting the generality of subsection (1), in determining which measures are reasonable and practicable for the purposes of subsection (1), a person is to have regard to:
(a) the nature of the environmental harm and the sensitivity of the environment into which a contaminant or waste is placed or may be placed;
(b) current technical information reasonably available to the person in relation to the activity and the likelihood that a measure proposed in the information would minimise the pollution, environmental harm or waste that the activity or action may cause; and
(c) the financial implications of implementing or carrying out the measures.
(3) A failure to comply with subsection (1) does not of itself constitute an offence, but where a person has failed to comply with the subsection a pollution abatement notice may be issued to him or her.
Section 83 of the WMPC Act relevantly provides:
83 General environmental offences
(1)A person must not intentionally pollute the environment, where:
(a)serious environmental harm results; and
(b)he or she knows, or ought reasonably be expected to know, that serious environmental harm or material environmental harm will or might result from the pollution.
Penalty:environmental offence level 1.
A PAN may be amended or revoked by notice in writing given to the person to whom the notice was issued: s 82(1) WMPC Act.
The offence of contravening or failing to comply with a PAN is created by s 80 of the WMPC Act:
80 Person to comply with abatement notice
(1)A person to whom a pollution abatement notice is issued, and his or her employees and agents, must not intentionally contravene or intentionally fail to comply with the notice.
Penalty: environmental offence level 3.
(2)A person to whom a pollution abatement notice is issued, and his or her employees and agents, must not contravene or fail to comply with the notice.
Penalty: environmental offence level 4.
(3)A person is not liable to prosecution for an offence against this Act by performing or failing to perform an action if the action or failure to act is in pursuance of a pollution abatement notice.
(4) A pollution abatement notice in relation to an object or land remains in force notwithstanding that the person to whom it is issued has ceased to be the owner or lessee of the object or land or the occupier of the land.
The present appeals
The present appeals proceed on the basis of identical Amended Notices of Appeal filed by each appellant. The grounds of appeal pleaded by each appellant are:
(1) The primary Judge ought to have exercised his discretion and acceded to the pre-trial application made by the appellants to him on 13 September 2021 that the hearing of the two complaints should be adjourned pending the hearing and determination of the s 83 charges on the grounds that the appellants would be prejudiced in making full answer to the complaints in the Local Court before the hearing and determination on indictment of the intentionally polluting charges.
(2) The primary Judge ought to have found that each of the amended PANs directed to the appellants were not issued in the form approved by the NT EPA and did not constitute valid and enforceable PANs for the purposes of s 77 of the WMPC Act.
(3) The primary Judge ought to have found that the complaints laid under s 80 of the WMPC Act for failure to comply with each amended PAN, were issued more than 12 months after the NT EPA first became aware of the commission of the offences, contrary to s 94 of the WMPC Act.
(4) The primary Judge ought to have found that the requirements for compliance set out in each amended PAN exceeded the power accorded to the NT EPA under s 79 of the WMPC Act and did not constitute valid and enforceable PANs for the purposes of s 77 of the WMPC Act.
(5) The primary Judge failed to take into account the fact that Mr Anthony was the sole director and sole shareholder of DWD and that the penalty imposed upon DWD would be borne by Mr Anthony.
(6) The primary Judge erred in finding that the appellants had breached the provisions of s 5 (2)(ha) of the Sentencing Act 1995 (NT) and that there must be consequences for such breach.
(7) The primary Judge erred in finding that there was “nil utility” as a matter informing the sentencing discretion.
(8) The penalties imposed upon the appellants were manifestly unreasonable having regard to all the circumstances and, in particular, to the fact that there was no evidence before the Court of the environmental effect of the non-compliance with the amended PANs.
Ground 1: Unfairness to the appellants in proceeding with the hearing of the PAN charges before the s 83 charges
As noted above, on 13 September 2021 the lawyers for the appellants made an application to a Judge of the Local Court (the primary Judge) for the PAN charges to be heard after the determination of the s 83 charges in the Supreme Court. That application was refused the same day. An examination of the transcript of the application made on 13 September 2021 shows that the appellants raised the following matters as the basis for their application:
(a) Their counsel was in Sydney and, because of COVID-19 arrangements, could not appear in person on the listed hearing date of 23 September 2021; and
(b) There were other charges arising out of the same factual matrix that had yet to be finalised. Those facts (or unspecified parts of those facts) were in dispute. The other charges included the s 83 charges that were to be dealt with in the Supreme Court on indictment.
The primary Judge refused the applications on the following grounds:
(a) While it was preferable for the Supreme Court matters to be heard first, there was no unfairness to the appellants in having the PAN charges heard first;
(b) COVID-19 arrangements were not new, and the unavailability of counsel to attend the hearing in person was not a sufficient reason to vacate a long-standing hearing date; and
(c) Any prejudice to the appellants which may arise from hearing the PAN charges first could be remedied in the Supreme Court proceedings by an order that the evidence in the PAN proceedings be “disregarded” in the hearing of the charges in the Supreme Court.
In challenging the decision of the primary Judge to refuse an adjournment, the appellants raised a number of matters on appeal that were not raised before the Local Court:
(a) A conviction or convictions with regard to the s 83 charges or the Planning Act charges enlivens the prospect of additional orders being made, including orders that the appellants make good any environmental damage within a specified time (a reparation order);
(b) Any order of that nature would involve a large expenditure by the appellants, estimated to be in the range of $4m to $19m, subject to the degree of asbestos contamination;
(c) The charge of failing to comply with a PAN is based upon the issuing of such a notice. Such a notice may be issued where the NT EPA believes on reasonable grounds that a person has committed or may commit an offence against s 83 of the WMPC Act or has contravened or failed to comply with s 12 of the WMPC Act. This may be contrasted with the offence under s 83 of the WMPC Act, which requires the prosecution to prove an actual offence of polluting the environment with the requisite mental intention. The difference between the PAN charges and the s 83 charges, the appellants submitted, may be important in the respondent obtaining a reparation order;
(d) The application of the principles expressed by the High Court in Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 (Zhao) at [50] should have resulted in the application for an adjournment being granted.
In determining whether to grant or refuse an application for an adjournment, a judicial officer is exercising a discretion. In exercising that discretion, the judicial officer is not confined to considering what is in the best interests of the accused. He or she may also have regard to the interests of justice: R v Cox[1]. A discretionary decision will only be overturned in accordance with the well-known principles enunciated by the High Court in House v The King[2], where, in a joint judgment, Dixon, Evatt and McTiernan JJ said, at 504 to 505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion.
The primary Judge did not take into account those matters set out at [23] above, but he can hardly be said to have been in error in not referring to material which was not placed before him, or submissions not made to him, by the appellants. The only potential House v The King error made by the primary Judge, as identified by the appellants, is the assertion that any prejudice to the appellants arising from the refusal of the adjournment application (and the consequent hearing of the PAN charges before the s 83 charges) could be cured by orders in this Court in the hearing of the s 83 charges that the evidence of what transpired in the hearing of the PAN charges be excluded. As the appellants rightly submitted, this was an error. There is no identifiable basis for exclusion in the Supreme Court proceedings of evidence voluntarily given or called by the appellants in the course of the hearing of the PAN charges in the Local Court. Certainly, none was identified by the primary Judge.
The primary Judge made reference to the prospect of unfairness to the appellants at two points during the application. On the first occasion, his Honour said:
But, yes, I must say, to the extent that there may be any unfairness to your client in the other matter, the more serious matter, it seems, the Supreme Court matter – and I can’t see how they would be – but, if there was, the Supreme Court would exclude reference to anything that was found here. They certainly wouldn’t allow something unfair to go before the jury and I don’t see that there is any unfairness, substantively or procedurally, to your client by this matter going ahead before the Supreme Court matter.
Later, his Honour said:
And I think, of course, it would be preferable to have the Supreme Court matter first. But, as I’ve said, for the reasons outlined, I don’t see any bar to it happening the other way around and I don’t see any unfairness occasioned thereby. If, indeed, there is, it can be remedied later in the Supreme Court by these matters being disregarded for the purpose of that prosecution.
While it was undoubtedly an error of law by the primary Judge to take into account, in determining the application for an adjournment of the hearing of the PAN charges, that any prejudice accruing to the appellants by having to defend the PAN charges before defending the s 83 charges in this Court could be cured in this Court in the way he suggested, it was not a material error. A fair reading of the primary Judge’s reasons shows that the principal finding of the Judge was that the appellants would suffer no unfairness if the hearing of the PAN charges preceded the hearing of the s 83 charges. I am satisfied that this is correct. The appellants submitted that the statement made by the primary Judge that it would be preferable to have the s 83 charges heard first was an acknowledgement by his Honour that the appellants may suffer prejudice if they were required to defend the PAN charges first. I do not accept that proposition. The primary Judge gave no reason for his belief that it would be preferable for the s 83 charges to be heard first, but in the context of his Honour’s reasons as a whole, it is apparent that he was not referring to a risk of unfair prejudice. It may well be that his Honour’s statement was simply an acknowledgement of the fact that the appellants may have legitimate forensic reasons for wanting to defend the s 83 charges first.
An accused person charged with multiple offences which, for whatever reason, must be heard separately, does not have the right to dictate which offence or offences are to be tried first. This is the case even where there may be some forensic advantage to an accused in the charges being heard in a particular order. In R v Giovannone[3], Sheller JA (with whom Grove and Kirby JJ agreed) said, at [26]:
There is no principle that, where an accused person faces separate trials, he is entitled to have the trial of the more serious offence concluded before facing trial on the other charge; Regina v Van Phu Ho (unreported) NSWCCA, 18 July 1994; R v Pirrottina (unreported) NSWCCA, 27 September 1996 at 9. In Ho the appellant was charged with a State offence of supplying heroin and a Federal offence of importing heroin. The trial date for the State offence was fixed first. It was submitted on behalf of the applicant that the prosecution of the relatively more minor State offence before the trial of the more serious importation offence constituted a procedural irregularity and that the Federal prosecutor intended to adduce the same evidence as that put forward in the State matter as an overt act in its prosecution. At 5 in his judgment, Mahoney JA, with whom Gleeson CJ and Dunford J agreed, said:
“As Mr Drake has pointed out, his Honour was conscious of the fact that, as he said in his judgment, the sale of the heroin which is the substance of the State charge ‘represents an overt act relied upon by the Commonwealth DPP in its case’. His Honour took that into account in deciding what he should do. Whether his Honour was right or wrong in the exercise of his discretion, there was no error of principle involved. But taking the matter beyond that, I do not think that if there was any irregularity it is one which would warrant this Court’s intervention.
The two trials are to proceed at different times. Having regard to what has been said about them, I do not think that there would be any prejudice warranting the grant of leave to appeal or the upholding of an appeal in a case such as this because of the sequence of them.”
Later, at [28], Sheller JA continued:
In my opinion it was entirely in the discretion of the Director of Public Prosecutions to decide in which order the trial on the false testimony and the re-trial should take place.
The decision in Giovannone does not stand for the proposition that in all cases the sequence of hearing of separate criminal charges will not occasion unfair prejudice to an accused. What the decision does establish however, is that an accused seeking to have charges heard in a particular sequence must establish that they will be prejudiced if the charges are heard in a different sequence, and that loss of a forensic advantage (real or perceived) if the charges are heard in a different sequence does not, of itself, constitute unfairness.
No doubt it may be possible to conceive of a case where it may be arguable that to hear one set of charges before another constitutes an abuse of process. This is not such a case. The elements of the various charges which have been laid against the appellants are different, such that it is unclear even now to what extent there may be common elements in the appellants’ defences to the various charges. Even if there are common elements, it is unclear how it is said that there is relevant unfairness in the appellant’s having to face the PAN charges before the s 83 charges, other than the prosecution potentially becoming aware of the appellants’ defence to the s 83 charges.
The respondent submitted that the appellants have not identified the precise prejudice they would have suffered, or did in fact suffer as a result of the refusal of the application to adjourn the hearing of the PAN charges. The unfairness that the appellants identify is that they would necessarily have revealed their defence to the s 83 charges if they had led evidence in the hearing of the PAN charges. An accused in the position of the appellants in the application before the primary Judge on 13 September 2021 should not be required to give details of their defence to the Court so as to enable the Court to make its own assessment of the prospect of the accused suffering prejudice if the application is not granted. That would be to expose the accused to the very prejudice they seek to avoid: Zhao at [43]. It is sufficient if it appears that there is a real prospect of relevant prejudice.
Before concluding this ground of appeal, I will briefly refer to those matters the appellants sought to raise on this appeal but were not put to the primary Judge. The fact that ancillary orders, such as reparation orders, may be made upon conviction of the s 83 or the Planning Act charges does not raise any issue of relevant unfairness. It may be the case that, for the appellants, more is riding on the outcome of those charges than on the outcome of the PAN charges, but that does not establish relevant unfairness in relation to the PAN charges being heard first.
The appellants’ submissions were heavily reliant on the High Court decision of Zhao. That case can be distinguished from the present appeal on its facts. The issue in Zhao was whether civil forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth) (the POC Act) should be stayed pending the completion of criminal proceedings against one of the respondents to the forfeiture proceedings. The offence specified as the basis of the civil forfeiture proceedings was the same offence on which that respondent was awaiting trial. At first instance, in the County Court of Victoria, it was unsuccessfully argued that a stay should be granted as to proceed with the civil proceeding first would carry a risk of prejudice to the respondent in his subsequent criminal trial if he were to give evidence and be cross-examined in the forfeiture proceeding. This decision was reversed on appeal: Zhao v Commissioner of the Australian Federal Police[4]. The Court of Appeal accepted that if the forfeiture proceedings were not stayed, the prosecution would be informed, in advance of the respondent’s trial, of his defence because he could not realistically defend the forfeiture proceedings without revealing his defence to the pending criminal charges.
Special leave to appeal on behalf of the Commissioner was granted by the High Court. In dismissing the appeal, the Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) stated that the risk of prejudice to the respondent if a stay of proceedings was not granted was plain. The Court went on to say, at [49]-[50]:
It may be accepted that criminal proceedings are not an impediment to civil proceedings under the POC Act, but it does not follow that it is intended that forfeiture proceedings brought under the POC Act will continue where to do so would put a respondent at risk of prejudice in his or her criminal trial.
The interests of justice are not served by requiring the second respondent to defend the forfeiture proceedings or pursue the exclusion proceedings before his criminal proceedings are finalised, especially since the Commissioner will suffer no relevant prejudice from a delay in the continuation of the forfeiture proceedings.
In the present case, the issue before the primary Judge was not whether civil proceedings arising out of the same factual matrix as criminal charges against the appellants should be stayed pending the determination of the criminal proceedings. The issue before the primary Judge was whether the appellants would suffer prejudice sufficient to warrant an adjournment of the hearing of the PAN charges if the PAN charges were heard before the s 83 charges. The primary Judge’s decision did not involve any infringement of the principles that a criminal trial is accusatory or that an accused has no obligation to assist in a prosecution against them. Where the appellants were facing multiple criminal trials, they had to give up their right to silence and reveal their defence at some point (assuming that their defence was common to all charges) if it was their intention to lead evidence in reply to the prosecution case. A fear that, if the PAN charges were heard first, the prosecution would be made aware of the basis of the appellant’s defence to the s 83 charges and may be able to strengthen its case on the s 83 charges accordingly, does not lead to relevant prejudice. No matter which of the charges was heard first, the appellants would be required to reveal their hands if they proposed calling evidence. For the reasons that I have given, I am not satisfied that the primary Judge erred in finding that no relevant prejudice would arise if the PAN charges were heard before the s 83 charges.
Ground 2: The validity of the pollution abatement notices
This ground of appeal is based upon the submission that the respondent was required to use the approved form in issuing a PAN. The submission made by the appellants consists of three parts:
(a) the respondent is required by statute to issue a PAN in the approved form;
(b) the PANs issued by the respondent, and upon which the PAN prosecutions were based, were not in the approved form; and
(c) accordingly, the PANs were invalid and the appellants could not be convicted of the offence of not complying with the PANs.
The power to issue a PAN is found in s 77 of the WMPC Act: see [15] above. The word “approved” in s 77 is defined as meaning “approved in writing by the NT EPA”: s 4(1) WMPC Act.
The hearing before the primary Judge proceeded on the basis that the approved form for the purposes of s 77 of the WMPC Act came into effect on 12 December 2008. The body of the form (AB 859-860) contains a number of headings under which appropriate details pertaining to the particular case are to be included. The heading “Reason” is followed by the following, which is effectively a recitation of the requirements of s 77:
I, the authorised delegate of the Chief Executive Officer, pursuant to the Waste Management and Pollution Control Act (“the Act”), believe on reasonable grounds that:
1.[name of person to whom notice is issued] has committed or may commit an offence against Section 83 [insert specific subsection of 83] of the Act;
and
2.has contravened or failed to comply with Section 12 of the Act
[delete whichever is applicable (sic). If only one ground applies, then specify only one, if two grounds apply, then specify both as provided above]
The PAN issued to DWD on 1 June 2020 relevantly provided:
I, Paul Purdon, delegate to the Northern Territory Environment Protection Agency (“the NT EPA”), believe that DWD Project Pty Ltd (“DWD”):
(i) has committed a General environmental offence, contrary to section 83 of the Waste Management and Pollution Control Act 1998 (NT) (“the Act”);
(ii) has contravened or failed to comply with the General environmental duty, pursuant to section 12(1) of the Act; and
(iii) is the owner or occupier of land that is polluted.
The PAN issued to Mr Anthony on the same date was in the same form, except, of course, it referred to Mr Anthony. It will be observed that the PANs issued on 1 June 2020 deviate from the approved form in that they do not assert that Mr Purdon’s belief is based on reasonable grounds. On the basis of this deviation from the approved form, the appellants submit that the PANs of 1 June 2020 were invalid. Interestingly, the PANs issued on 12 October 2018 and 10 January 2019 were issued by another officer of the respondent and were in the approved form. This has implications for the resolution of this ground of appeal to which I will return shortly.
The primary Judge found that the PANs were “fairly compendious” documents which set out the basis for Mr Purdon’s belief in detail. The primary Judge went on to say:
There can be no complaint that the case against the defendant wasn’t known. He knew it in detail. He knew the basis for the case. And he had been consulted at length about the same. And so in that regard, the word “reasonable” is really the absent word in the notice in looking at the Act, and I am satisfied that there is no need to put that in there. That’s really a caveat of sorts that requires the notice to be reasonable, which I take to mean bounded in fact, substantial. And so it is.
From the above, I understand that the primary Judge took the view that it was unnecessary for Mr Purdon to assert in the PANs that his belief was based on reasonable grounds. The primary Judge also appears to have concluded that what was required was for the Court to determine that the belief of Mr Purdon was a reasonable belief. In my opinion, both of these views were incorrect.
The primary submission made by the respondent regarding this ground of appeal was that the PANs issued on 1 June 2020 were in the approved form. There was evidence in the proceedings before the primary Judge that Mr Purdon was a public sector employee who was, at the relevant time, the subject of a delegation of all of the NT EPA’s powers and functions under the WMPC Act, including the power to issue PANs and to approve forms. The respondent submitted that the issuing of the PANs to the appellants on 1 June 2020 was an exercise of both powers concurrently. In his evidence Mr Purdon said that at the time he issued the PANs on 1 June 2020 he considered the form in which the PANs were to be issued. He was conscious that this was “a new structure…for a pollution abatement notice”. He considered that the form of the 1 June 2020 PANs was an improvement on the “previous form”, which was the approved form.
The respondent’s primary submission cannot be accepted. It may be accepted that there was evidence that Mr Purdon held a delegation of the power to approve forms under the WMPC Act, including approving the form for PANs. The provisions of s 4 of the WMPC Act make it plain, however, that any such approval must be in writing. The issuing of the PANs on 1 June 2020 was an exercise of the power delegated to Mr Purdon to issue such documents, but it was not an exercise of the power delegated to him to approve the form of such documents. What the WMPC Act requires is that the approval of the form be in writing. Simply issuing a PAN in a particular form does not satisfy the requirement that the approval of the form be in writing.
To the extent that s 43 of the Interpretation Act 1978 (NT) (the Interpretation Act) may be said to be relevant, the power given by that provision to amend or vary a statutory instrument is exercisable in the same manner as the power to make the statutory instrument. The approved form of a PAN is a statutory instrument by virtue of s 17 of the Interpretation Act because it falls within the definition of an “instrument of a legislative or administrative character”, being a document made under a power conferred by an Act. The result of these provisions is that any amendment or variation of the approved form of a PAN, exercising the power found in s 43 of the Interpretation Act, must be in writing. For the reasons which I have given, the issuing of the PANs on 1 June 2020 did not constitute an amendment or variation of the approved form of a PAN in writing.
There is an argument that was not raised by the respondent, and pursuant to which it could be suggested that the PANs issued on 1 June 2020 were in the approved form. This argument depends upon whether the PANs issued on 1 June 2020 were a fresh exercise of the power granted by s 77 of the WMPC Act or whether they were amended versions of earlier PANs. The parties referred to the PANs issued on 10 January 2019 and 1 June 2020 as “the amended PANs” and “the further amended PANs” respectively. If the amended PANs of 10 January 2019 were in the approved form, then any amendment of those documents utilising the power of amendment in s 82 of the WMPC Act would arguably not be effective to the extent that it exceeded the power of amendment. It would seem axiomatic that the power granted to amend a PAN would not extend to amending the document so that it was no longer a PAN issuable under s 77 of the WMPC Act. If that were the case, the amendment of the PANs of 10 January 2019 may have been ineffective to the extent that it removed the reference to the belief of the relevant officer being a belief on reasonable grounds. This may well have resulted in the further amended PANs issued on 1 June 2020, when read with those of 10 January 2019, retaining the relevant wording.
There are difficulties with that approach. Not only was it not the subject of submissions by the parties, but there is a significant difference between the PANs of 12 October 2018 and 10 January 2019, on the one hand, and those of 1 June 2020 on the other. The PANs of 12 October 2018 and 10 January 2019 were issued on the basis of a belief formed by Dr Paul Vogel, the Chairman of the respondent. The PANs issued on 1 June 2020 were based on a belief formed by Mr Purdon. This speaks of the fresh exercise of the power to issue a PAN rather than an exercise of amending previously issued PANs. While the PANs of 1 June 2020 expressly state “This pollution abatement notice amends those previously issued to you by the NT EPA in relation to the premises”, the fact that they were issued based on the expressed belief of a different officer of the respondent suggests that the issuing of the 1 June 2020 PANs was a fresh exercise of the power granted by s 77 of the WMPC Act. It may be argued that what s 77 requires is that the respondent forms the relevant belief, and that both Dr Vogel and Mr Purdon represent the respondent, but this also was a matter not addressed by counsel. The parties conducted the proceedings before the primary Judge and the present appeal on the basis that the PANs issued on 1 June 2020 were issued as a result of a valid exercise of the power of amendment found in s 82 and I will approach the resolution of Ground 2 on that basis.
The terms of s 77 of the WMPC Act are clear, and the power which is given to the respondent by that provision is a power to issue a PAN in the approved form. The form of the PANs issued by Mr Purdon on 1 June 2020 deviated from that which was approved. The issue therefore resolves to one of whether the PANs issued on 1 June 2020 were thereby invalid.
The submission advanced by the respondent was that, in the event that the PANs of 1 June 2020 had not been issued in the approved form, the PANs were nevertheless valid. The respondent referred to the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[5] where the plurality (McHugh, Gummow, Kirby and Hayne JJ) said, at [91] – [92]:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory.
(Footnotes omitted)
After criticising the continued use of a distinction between mandatory and directory provisions, the plurality went on to say, at [93]:
…The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.
(Footnotes omitted)
The appellants submitted that the requirements for the issue of a PAN found in s 77 of the WMPC Act are “in forceful terms” and permit the issue of such a notice in an approved form only. The appellants further stated that “the form” (a PAN) is important, not only for compelling the recipient to take action under threat of criminal sanction, but also because the form is registered with the Land Titles Office as an encumbrance on the title to the affected land and binds to that land, including any successors in title. It also has the secondary effect of publishing unproven allegations to persons who consult the public register of land. These are certainly important considerations in determining whether the deviation from the approved form found in the further amended PANs renders them invalid.
The respondent submitted that the character and purpose of the WMPC Act is preventative and protective. The respondent submitted that it is directed to beneficial environmental outcomes, such that matters of substance should be prioritised over matters of form. In support of that submission, the respondent cited the decision of Blow J (as his Honour then was) in R v Turner & Ors (No 9)[6] where it was held that fishing permits issued on the basis of applications not in the approved form were nevertheless valid permits. The facts in Turner were somewhat different to the present situation, as although the relevant legislation required an application to be made in an approved form, no form had ever been approved. By reference to the provisions of the relevant statute, Blow J concluded that the legislature had not intended that the use of an approved form be essential to the operation of the provision granting the power to issue licenses. While this case is not directly applicable to the present facts, it does demonstrate the application of the principles set out in Project Blue Sky, that is, that the question is one of statutory interpretation.
The objectives of the WMPC Act are set out in s.5:
5 Objectives
The objectives of this Act are:
(a)to protect, and where practicable to restore and enhance the quality of, the Territory environment by:
(i) preventing pollution;
(ii) reducing the likelihood of pollution occurring;
(iii) effectively responding to pollution;
(iv) avoiding and reducing the generation of waste;
(v) increasing the re-use and re-cycling of waste; and
(vi) effectively managing waste disposal;
(b) to encourage ecologically sustainable development; and
(c)to facilitate the implementation of national environment protection measures made under the National Environment Protection Council (Northern Territory) Act 1994.
For present purposes it is not necessary to explore what environment protection measures may have been made under the National Environment Council (Northern Territory) Act 1994 (NT). It is sufficient to note that one of the expressed purposes of that enactment is to ensure that people enjoy the benefit of equivalent protection from air, water or soil pollution, wherever they live in Australia.
An examination of the WMPC Act reinforces the statement in s 4 that the Act is intended to protect the environment against pollution and to allow action to be taken to restore the environment where pollution has occurred. For example, under the provisions of Part 4 of the WMPC Act, the responsible Minister may propose for the approval of the Administrator a draft environment protection objective which may, inter alia, establish the principles on which pollution, or environmental harm resulting from pollution, is to be assessed, prevented, reduced, controlled, rectified or cleaned up: s 15 WMPC Act. The WMPC Act also identifies activities that can only be carried out under an environment protection approval or an environment protection licence. The WMPC Act requires the NT EPA, in determining whether to grant an approval or a licence to have regard to the objectives of the WMPC Act, and other environmental considerations: s 32 WMPC Act.
Section 77 of the WMPC Act falls within Part 10 of that Act, headed “Enforcement”. A PAN issued under s 77 is a key mechanism provided by the Act to enforce compliance with the provisions of the Act. As is clear from the terms of s 77, a PAN can only be issued where the respondent believes on reasonable grounds that a person has committed or may commit an offence against s 83 or has contravened or failed to comply with s 12, both of which may encompass serious acts of pollution of the environment with significant actual or potential adverse consequences for both the environment and the community.
The question of the invalidity of a purported PAN by reason of a failure to follow the approved form will depend on the circumstances of each case. It will often be a question of the degree of deviation from the approved form. The subject matter and the objects of the WMPC Act strongly suggest that the relatively slight deviation which occurred in the present case was not intended by the legislature to make void the whole document. There is nothing in the language of s 77 or the WMPC Act generally that would suggest that it was the legislative intention that the PANs of 1 June 2020 would be void by reason of their form.
In the present case, any deviation from the approved form could not have been misleading. The appellants had already received two prior iterations of the PANs in the approved form, all directed towards the same subject matter and requiring the same action on the part of the appellants. All that changed were the dates for compliance by the appellants. It is not submitted that the PANs of 1 June 2020 did not provide adequate particulars of the alleged bases for the issuance of the notices, or clear directions as to what was required of the appellants in order to comply with those notices. The fault with the PANs issued on 1 June 2020 (if there be one) was purely procedural.
For these reasons I am satisfied that the PANs issued on 1 June 2020 were not invalid.
Before leaving this ground of appeal, I will mention one further matter. Section 68 of the Interpretation Act provides that strict compliance with forms prescribed by or under an Act is not necessary and substantial compliance is sufficient. As is apparent from the above, I do not regard any deviation of the form of the PANs of 1 June 2020 from the approved form to be of substance. The learned author of Interpretation Acts in Australia (2018, LexisNexis Butterworths), Emeritus Professor Dennis Pearce states, at [3.76]: “Perhaps the basic test (of whether there has been substantial compliance) will be whether the departure from the required wording or the inclusion of the specified information will mislead the person who is the recipient of the form or who has to act on reliance upon it”, citing Attorney General (NSW) v Markisic[7] and Re Monger; Ex Parte Velsberry Pty Ltd[8].
It was never argued by the appellants that the form of the PANs issued on 1 June 2020 made them misleading. That argument could not reasonably be made. The effect of s 68 of the Interpretation Act in the present case is that the PANs issued on 1 June 2020 are valid as being substantially in the approved form.
Ground 2 fails.
Ground 3: The limitation issue
By operation of s 94 of the WMPC Act, any complaint for an offence against that Act can only be brought before 12 months after the NT EPA becomes aware of the commission of the offence. The appellants submitted that the respondent had been aware of their failure to comply with the terms of the initial PANs issued on 12 October 2018 and amended by the PANs issued on 10 January 2019, by 30 August 2019. This was the date set for compliance with the amended PANs. The appellants submitted that the limitation period found in s 94 commenced no later than 30 August 2019, with the result that the present charges, which were laid on 24 November 2020, were commenced outside the period prescribed by s 94.
This ground of appeal is misconceived. The factual basis of the charges laid against the appellants in the present proceedings is an alleged failure to comply with the requirements of the further amended PANs issued on 1 June 2020. It may well have been open to the respondent to have commenced proceedings against the appellants based upon a failure to comply with the amended PANs issued on 10 January 2019, but the respondent did not do so. When the respondent amended the PANs on 10 January 2019 and again on 1 June 2020, it did so by changing the date for compliance with the directions given to the appellants in the PANs. Each failure to comply with the requirements of the original, amended or further amended PANs, or contraventions of their requirements, if they were intentional failures or contraventions, constituted separate offences. Any intentional failure of the appellants to comply with the requirements of the further amended PANs issued on 1 June 2020 constituted an offence which was committed on the date that the failure or contravention occurred. The earliest date set for the appellants to comply with a requirement of the further amended PANs issued on 1 June 2020 was 17 July 2020 when the appellants were required to provide to the respondent a Waste Removal Management Plan and a Waste Sampling, Classification, Quality Assurance and Disposal Plan. The period of 12 months for the commencement of a prosecution for a breach for that contravention of, or failure to comply with, that requirement of the further amended PANs commenced on 18 July 2020. The alleged breaches of the other requirements of the further amended PANs occurred at later dates, depending upon the date set for compliance in the notices. As the present proceedings were commenced in the Local Court on 24 November 2020, they were commenced well within the time allowed by s 94 of the WMPC Act.
It was submitted on behalf of the appellants that to construe s 94 of the WMPC Act in this way would render nugatory the statutory protection given to recipients of PANs by the section. I disagree. By 1 June 2020 the respondent had lost the ability to enforce the requirements of the original PANs or the amended PANs by commencing a criminal prosecution. Section 94 of the WMPC Act gave the appellants immunity from prosecution for any breach of those notices. There is, however, nothing in the WMPC Act to suggest that the appellant’s were thereby immune to further action under the WMPC Act directed towards the removal of the dumped material and restoration of the premises. Such action may include a fresh exercise of the power to issue a PAN under s 77 or the further amendment of the PANs to set fresh dates for compliance. In the present case the latter course was adopted. The effect of what occurred in this case was beneficial to the appellants, because they were not prosecuted for any earlier breaches of the original or amended PANs and they were given further time to undertake the required works or to challenge the issuing of the further amended PANs.
There are undoubtedly good reasons why the legislature did not intend for s 94 of the WMPC Act to operate as a bar to the respondent pursuing further remedial action under the WMPC Act against an alleged polluter simply because the respondent chooses not to commence a criminal prosecution within 12 months of becoming aware of a breach of the requirements of a PAN. It is in the public interest, and the interests of those who receive PANs, that the issues which give rise to the issue of such a notice be resolved by negotiation. That is what was attempted in this case. It is also in the public interest that the respondent be able to take remedial action, and to enforce it by commencing criminal prosecutions if necessary, where the process of negotiation is unsuccessful.
Ground 3 is unsuccessful.
Ground 4: The further amended PANs were invalid as the requirements of the notices exceeded the power granted by s 79 of the WMPC Act
The appellants contended that the requirements imposed on them by the further amended PANs were beyond the power of the respondent to issue. In particular, the appellants submitted that the respondent had no power to require them to undertake remedial action on land belonging to another, being Lots 10881 and 10882, the blocks of vacant Crown land adjoining the block owned by DWD.
The further amended PANs identified the premises to which they related as the Lot belonging to DWD and the two adjacent Lots of vacant Crown land. The notices required the appellants, inter alia, to remove all wastes and contaminants that had been deposited on each of the nominated Lots since 20 October 2015. The appellants are neither the owners nor occupiers of the blocks of vacant Crown land and as such, they submit, the further amended PANs require them to trespass on the vacant Crown land. They submit that the respondent is not empowered by the terms of the WMPC Act to require them to commit a trespass and, as such, the further amended PANs are invalid. In support of that submission they point to provisions of the WMPC Act that they say expressly allow the respondent to enter onto the land of a third party to undertake remedial work: see s 101 of the WMPC Act.
The appellants addressed the same argument to the primary Judge who dismissed it by reference, at a high level of generality, to the legislative intention behind the WMPC Act.
The first observation I make is that it is not at all clear that the further amended PANs required the appellants to enter onto the vacant Crown land, and particularly not as trespassers. The further amended PANs certainly require action to be undertaken on the Crown land. The work could be undertaken by the Crown at the request of the appellants and at their expense. Alternatively, the appellants could seek the approval of the Crown to enter onto the Crown land to undertake the works. There was no evidence that the Crown had refused either such suggestion.
It is clear from the terms of s 77 that the respondent can issue a PAN, assuming the preconditions are satisfied, to a person who has, relevantly for present purposes, engaged in illegal dumping, or to a person who is the owner or occupier of the land on which the dumping occurred. There is nothing in the terms of the WMPC Act to suggest that a PAN can only be issued to a person in the first category if they also fall within the second category.
It is unnecessary to explore what may have occurred had the Crown refused to undertake the remediation work on its own land at the expense of the appellants and refused the appellants access to the land for them to undertake the remediation works. It has never been suggested that this occurred. As the further amended PANs do not require the appellants to trespass on the Crown land, this submission by the appellants fails.
The second submission made by the appellants under this ground of appeal is connected to the first. The appellants submitted that permission under the Planning Act is required for them to comply with the requirements of the further amended PANs, particularly the requirement that they remove all wastes and contaminants from the land.
The primary Judge dealt with this submission by reference to s 79(2) of the WMPC Act, which relevantly provides that a PAN may require a person to perform an action that is not otherwise permitted to be performed by or under the WMPC Act. If the primary Judge intended to assert that s 79(2) relieved the appellants of the necessity of obtaining permission under the Planning Act, then he was in error. Section 79(2) refers specifically to an action “not otherwise permitted to be performed by or under this Act”. The provision does not authorise a PAN to require a person to perform an action that is not permitted under another enactment, such as carrying out works without required planning permission.
The simple answer to the appellants’ second submission is that there was no evidence that the appellants had sought and been refused such permission. There was no evidence that the requirements of the further amended PANs were impossible for the appellants to perform, or to perform without committing an offence under the Planning Act. It is unnecessary to explore what implications refusal of such permission may have had for the present charges. I will, however, venture a few comments. The offence created by s 80(1) of the WMPC Act may be committed in two different ways: by intentionally contravening a PAN; or by intentionally failing to comply with a PAN. The offence created by s 80(2) is in similar terms, but omits the requirement that the contravention or failure be intentional. These two ways of committing the offence may be seen to correspond to the two possible forms of requirements found in a PAN, being a direction to abstain from nominated conduct or to engage in nominated conduct respectively. Impossibility of performance of a requirement of a PAN, for whatever reason, is only likely to be an issue with a requirement that a recipient of a PAN engage in nominated conduct. The nature of the allegation of the offence in such circumstances will be that the recipient failed to comply with the PAN. In interpreting the intended meaning of the word “fail” in s 80 a number of different approaches are possible. In Deputy Commissioner of Taxation v Ganke[9] Nagle J, with whom Street CJ and Begg J agreed, said, at 257-258, with regard to an offence of failing to comply with a notice under the Income Tax Assessment Act 1936 (Cth):
An offence under s. 223 occurs when a person “fails to duly furnish…any…information…as and when required by” the Act; but, as has been pointed out by Sir Frederick Jordan in Ingram v Ingram, there may be various interpretations given to the word “fail”. He said: “As to the first point, where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word “fail” depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it: Miedbrodt v Fitzsimons; R v Southwark Borough Council; Ex parte Southwark Borough Market Trustees. In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible: cf. Loates v Maple. In other cases it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded: cf. Re Neilson. In the case of s. 11 (failure to comply with a restitution decree under the Matrimonial Causes Act) I am of the opinion that the mere fact that the directions of the restitution decree have not been performed, although supplying evidence of failure to comply with the decree, does not establish such failure conclusively; and that evidence that the non-performance has been occasioned by some supervening impossibility to which no carelessness or delinquency on the part of the respondent in any way contributed would justify the inference that there has been no failure to comply with the decree.”
I would think, bearing in mind the nature of the legislation and the absolute terms of s. 223, that the word “fails” as found therein should be interpreted in accordance with the second category to which Sir Frederick Jordan refers in the passage quoted, and which is constituted by, “an omission to do the thing by reason of some carelessness or delinquency of his part, but not omission caused by impossibility for which the person in question is not responsible.”
(Footnotes omitted)
I have ventured to make these comments for the purpose of rebutting any suggestion that limitations such as those submitted by the appellants should be implied into the power granted by the WMPC Act to issue PANs, on the basis that the broader interpretation urged by the respondent will result in injustice if the recipient of the notice is legitimately incapable of complying with requirements found in the notice to undertake specified works. It is by no means clear that such a result will follow if the limitations urged by the appellants are not adopted.
This ground of appeal fails.
Ground 5: Failure of the primary Judge to take into account on sentence that Mr Anthony was the sole director and shareholder of DWD
It was ultimately accepted by the appellants during the hearing of the appeal that the primary Judge had taken into account in imposing sentence that Mr Anthony, as the sole director and shareholder of DWD, would bear the entirety of the penalty imposed on DWD.
Grounds 6 & 7: The primary Judge’s application of s 5(2)(ha) of the Sentencing Act 1995 (NT) and comment about “nil utility”
It is convenient to address these grounds together as they relate to the same passages of his Honour’s sentencing remarks. In those remarks his Honour said:
But it must be said that there’s nil contrition and nil utility, so it’s not a matter of being punished for those things, it’s just that there is no discount for those factors, which are indicated principally by the conduct of the defendant leading up to being charged, and during the conduct of the proceedings. And indeed the Local Court (Criminal Procedure) Act sets out at Div 2A:
Pre-hearing procedure for offences and sentence indications Note for Division 2A –
And this is also reflected in s 5 of the Sentencing Act –
Section 5(2)(ha) of the Sentencing Act 1995 provides that, in sentencing a defendant, the court must have regard to the conduct of the defendant during the proceedings, including the extent to which the defendant complied with a requirement imposed on the defendant under this Division.
So it must be said that nothing was admitted when it was entirely proper to admit much of the case; everything was in context; and that it was only on the doorstep of the court, indeed having walked through the doorstep of the court, that there started to be any reasonable concession made. But nonetheless it must be indicated it’s everyone’s right – all entities’ rights to plead not guilty and put the Crown to prove. But in terms of sentence, as Parliament has indicated, there must be consequences. So that’s a factor.
The appellants submitted that, in the above extract, the primary Judge has used the suggested failure of the appellants to make appropriate concessions or admissions as an aggravating sentencing circumstance, that is, a circumstance calling for greater punishment. The appellants submitted that this was demonstrated by his Honour’s comment that “there must be consequences”. I am not satisfied that the primary Judge erred in the manner submitted by the appellants.
In sentencing the appellants, the primary Judge was obliged to take into account those matters set out in s 5(2) of the Sentencing Act 1995 (NT). This included s 5(2)(ha), which provides that the sentencing Judge must take into account “the conduct of the offender during the proceedings, including the extent to which the offender complied with a requirement imposed on the offender under Part IV, Division 2A of the Local Court (Criminal Procedure) Act 1928”.
Division 2A of Part IV of the Local Court (Criminal Procedure) Act deals with pre-hearing procedures in the Local Court. The provisions of s 5(2)(ha) of the Sentencing Act beg the question, what requirements are, or may be imposed on a defendant under Division 2A of Part IV? In particular, what requirements are imposed on a defendant to make admissions (since that appears to have been the focus of the primary Judge’s comments)?
The provisions of s 60AJ(2) of the Local Court (Criminal Procedure) Act provide that, at a directions hearing, the defendant must indicate:
(a) the issues that are, or are not in dispute;
(b) whether the defendant intends to plead guilty or not guilty;
(c) whether the defendant intends to adduce alibi evidence;
(d) whether the defendant intends to call alibi witnesses or expert witnesses;
(e) the defendant’s estimate of the length of the hearing if the matter should proceed to a hearing; and
(f) any orders the defendant is likely to seek in relation to the matter.
At a directions hearing, the Local Court may order a defendant to disclose information to the prosecution: s 60AK.
In my opinion, the provisions of Division 2A of Part IV do not require a defendant to make admissions. Neither party suggested that any order had been made under s 60AK which the appellants had not complied with. The provisions of s 60AJ may be complied with, on the face of it, by an indication: that the defendant intends to plead not guilty; that all matters are in dispute; that the defendant does not intend to call alibi evidence; and of the estimated length of the hearing. It is not clear whether the primary Judge, in the portion of his sentencing remarks quoted above, was suggesting that there had been anything other than compliance by the appellants with the requirements of Division 2A of Part IV of the Local Court (Criminal Procedure) Act, but, in the present case, that is unimportant. Section 5(2)(ha) requires a sentencing judicial officer to undertake a broader enquiry than whether the defendant has complied with any requirement imposed upon them under Division 2A of Part IV of the Local Court (Criminal Procedure) Act. Whether such a requirement has been complied with is only part of the broader consideration of how the defendant has conducted the proceedings. The primary Judge was entitled to form the conclusion that the appellants ultimately did not dispute the factual basis of the prosecution case against them: they did not dispute that they had engaged in dumping the waste material on the premises as alleged; they did not dispute the nature of the waste material that had been dumped; and they did not dispute the history of dealings between them and the respondent set out above. The points of dispute between the appellants and the respondent were, firstly, whether the further amended PANs issued on 1 June 2020 were invalid and, secondly, whether the proceedings in the Local Court were statute barred by operation of s 94 of the WMPC Act.
A fair reading of the sentencing remarks of the primary Judge does not support the inference that his Honour took into account the way in which the appellants conducted the proceedings in the Local Court as an aggravating circumstance. Had the appellants conducted the proceedings in such a way as to identify those matters which were truly in issue, thereby saving the cost to the community of unnecessary prosecution preparation, they would have been entitled to a discount on sentence. The primary Judge was entitled to conclude that the way in which the appellants had conducted the proceedings in the Local Court disentitled them to the discount that they might otherwise have received. This is the “consequence” referred to by the primary Judge.
The appellants submitted that the primary Judge erred in making a finding in his sentencing remarks that there was “nil utility”. This remark by the primary Judge is somewhat cryptic, but it is found in that part of his Honour’s reasons addressing whether the appellants were entitled to any discount on sentence by reason of the way in which they conducted the proceedings in the Local Court. It is probable, in my opinion, that the primary Judge was referring to the fact that the appellants were not entitled to any discount on sentence because of the utilitarian value of a plea of guilty. No error on the part of the primary Judge has been demonstrated.
These grounds of appeal fail.
Ground 8: The penalties imposed were manifestly unreasonable
The appellants submitted that the penalties imposed upon them were manifestly unreasonable because:
(a) they had no relevant criminal record and were of previous good character;
(b) they had embarked, perhaps prematurely, upon a project on land which they believed they would purchase from the Crown;
(c) there was encouragement from the Northern Territory Department of Lands, Planning and the Environment;
(d) they had attempted to engage in negotiations with the respondent to identify more cost-effective means of achieving the site remediation; and
(e) the cost of the works required by the respondent to be undertaken on the premises was very high.
Correspondence between DWD and the Northern Territory government evidencing a desire by DWD to purchase the two blocks of Crown land adjacent to its block, Lot 5280, was tendered in the proceedings before the primary Judge. Two things emerge from that correspondence. While the Northern Territory government was not adverse to the proposition that DWD purchase the two blocks of Crown land, no agreement in that regard was ever concluded. Secondly, and more importantly, there is nothing in that correspondence which suggests that the Northern Territory government encouraged DWD, or Mr Anthony, to dump the waste that DWD did on any of the premises. At best, the evidence had the capacity to negative what would otherwise have been a circumstance of aggravation, being the brazen dumping of waste on land belonging to another.
The correspondence also confirmed that the appellants engaged, at their instigation, in negotiations with the NT EPA to try to arrive at an agreement which did not require the appellants to remove the waste from the premises. Those negotiations were unsuccessful. There is nothing particularly mitigatory in the fact that the appellants engaged in those negotiations or that they were unsuccessful. If anything, the correspondence evidences an unwillingness on the part of the appellants to undertake the remediation of the premises that the respondent considers necessary. The respondent is the body entrusted with the responsibility of making decisions to achieve the best outcomes under the WMPC Act for the people of the Territory. I was not taken to anything in the WMPC Act which places an obligation on the respondent to adopt a process of remediation of polluted land governed by the polluter’s financial interests.
There was no evidence before the primary Judge of the exact cost of the remediation process required by the respondent on the premises. The estimated range of $4 million to $19 million depended on the exact composition of the dumped waste, and particularly the amount of asbestos in the waste, a matter which was then and is currently unknown. It is clear, however, that it will be an expensive process, and the cost of remediation may well exceed the current market value of Lot 5280. The appellants had not, however, at the time sentence was imposed by the primary Judge commenced the works or shown any willingness to do so. Nothing was put to me in the course of the present appeal to suggest that this position had changed. There can be little doubt that incurring the cost of remediation could act as both a punishment and as a deterrent, but in circumstances where the appellants had not commenced the required works in the three years between the issuing of the first PANs in October 2018 and the hearing before the Local Court in September 2021, and had shown no willingness to undertake those works, the potential cost of those works was not a matter to which the primary Judge was required to give great weight.
The appellants sought to place weight on the propositions that there was no proof that the land had not already been polluted before it was purchased by DWD and that there was no comprehensive analysis of the waste material that had been dumped at the premises by DWD.
With regard to the first proposition, it is not to the point that the premises may have been polluted by a contaminant or waste before DWD purchased Lot 5280 and began dumping waste on that Lot and on the other Lots of Crown land. The further amended PANs required the appellants to remove “All wastes and contaminants that have been deposited at the premises since 20 October 2015”, the date DWD took ownership of Lot 5280, and to return the land/sea boundary to where it had been in June 2016. I observe that the samples of the waste which returned the results set out at [6] above, involved samples taken from the waste that had been dumped in Darwin Harbour so as to alter the land/sea boundary. There was no evidence before the primary Judge to suggest that these results could have been a consequence of anything other than the dumping conducted by DWD.
Turning to the appellants’ second proposition, it is also not to the point that there was no comprehensive analysis of the waste material that had been dumped at the premises by DWD. One of the requirements imposed on the appellants by the further amended PANs was to provide a Waste Sampling, Classification, Quality Assurance and Disposal Plan, one requirement of which was to ensure that all wastes were “sampled and classified in accordance with the NSW Waste Classification Guidelines (2014), before being removed from the premises”. The appellants failed to comply with those requirements. Their failure to do so can hardly be mitigatory with respect to an offence of intentionally failing to comply with the requirements of the PANs.
The maximum penalty to which the appellant Mr Anthony was exposed in the Local Court proceedings was, by operation of s 4 of the Environmental Offences and Penalties Act 1996 (NT) and s 87(2) of the WMPC Act, in excess of $2.5 million. There was a minimum penalty of $12,089.00. Similarly, the maximum penalty to which DWD was exposed was just in excess of $3 million, with a minimum penalty of $60,445.00. By any measure the penalties imposed by the primary Judge were moderate.
This ground of appeal also fails.
Conclusion
The appeals are dismissed.
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[1][1960] VR 665 at 667.
[2] (1936) 55 CLR 499 (House v The King).
[3] [2001] NSWCCA 22 (Giovannone).
[4] (2014) 43 VR 187.
[5] [1998] HCA 28, 194 CLR 355 (Project Blue Sky).
[6] (2001) 10 Tas R 233 (Turner).
[7] [2012] NSWSC 433.
[8] [2003] WASCA 9.
[9] [1975] 1 NSWLR 252.
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