DWD Project Pty Ltd v Northern Territory Environment Protection Authority
[2023] NTCA 3
•4 April 2023
CITATION:DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2023] NTCA 3
PARTIES:DWD PROJECT PTY LTD (ACN 601 275 108)
and
ANTHONY, Michael Adrian
v
NORTHERN TERRITORY ENVIRONMENT PROTECTION AUTHORITY
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 7 of 2022 (22037655)
DELIVERED: 4 April 2023
HEARING DATE: 11 November 2022
JUDGMENT OF: Grant CJ, Kelly & Blokland JJ
CATCHWORDS:
CRIME – Appeals – Appeal against conviction – Wrong decision on a question of law
Whether pollution abatement notices not issued in the approved form and therefore invalid – As a matter of statutory construction, the issue of notices in other than approved form did not invalidate them – Notices substantially complied with the approved form – Whether complaints issued outside limitation period – Purpose of amending pollution abatement notice not to extend limitation period – Issue of amended notice establishes fresh obligation on recipient – Failure to comply by extended date for compliance gives rise to fresh offence which is subject to fresh limitation period – Appeal dismissed.
Interpretation Act 1978 (NT) s 68
Supreme Court Act1979 (NT) s 51
Waste Management and Pollution Control Act 1989 (NT) s 12, s 77, s 79, s 80, s 80, s 83, s 94Banjima People v Western Australia (No 2) (2013) 305 ALR 1, Bianamu v Rigby [2021] NTCA 4; John Mann International Limited v Vehicle Inspectorate [2004] EWHC 1236, NB & Ors v SB & Ors [2020] NTCA 2, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, R v Haynes and Haynes [1916] NZLR 407, R v Turner (2001) 10 Tas R 233, Saraswati v The Queen [1990] 172 CLR 1, SPNZT Ltd v Trecap Pty Ltd [2016] WASC 75, Swann v R [1999] WASCA 106, referred to.
COSTS – Party/Party – Bases of quantification – Factors relevant to the court’s discretion when quantifying costs
Costs of appeal from Local Court to Supreme Court a discretionary matter – Exercise of that discretion informed by length and complexity of case – Relevant consideration that offences committed in commercial context – Appeals more complex than the standard appeal from Local Court – Appeals raised important questions of statutory interpretation within a reasonably complex statutory context – No error demonstrated – Appeal dismissed.
Thyer v Whittington (No 2) [2018] NTSC 31, referred to.
REPRESENTATION:
Counsel:
Appellants:D Robinson SC
Respondent: T Moses
Solicitors:
Appellants:Clayton Utz
Respondent: Hutton McCarthy
Judgment category classification: B
Number of pages: 35
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINDWD Project Pty Ltd & Anor v Northern Territory
Environment Protection Authority [2023] NTCA 3
No. AP 7 of 2022 (22037655)
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: GRANT CJ, KELLY and BLOKLAND JJ
REASONS FOR JUDGMENT
(Delivered 4 April 2023)
THE COURT:
This is an appeal against a decision of the Supreme Court dismissing an appeal against convictions and penalties imposed by a Judge of the Local Court for offences 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.
Background
The first appellant, DWD Project Pty Ltd (“DWD”), is the owner of land on Stokes Hill Road, Darwin which adjoins vacant Crown Land. The second appellant, Michael Anthony (“Mr Anthony”), is the sole director and shareholder of DWD.
It was alleged that DWD dumped a large volume of uncontrolled fill material containing a range of pollutants on its own land, on the adjacent Crown land, and in the water immediately adjacent to that land.
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 set out the bases on which the respondent “believe[d] on reasonable grounds” that the appellants had committed an offence against s 83 or had contravened s 12 of the WMPC Act, and 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.
Revised PANs were issued to DWD and Mr Anthony on 10 January 2019 and 1 June 2020 extending the time for compliance. The revised PANs were not in identical terms but did require substantially the same remedial action. As is discussed further below, the revised PANs issued on 10 January 2019 also included the formulation that the respondent “believe[d] on reasonable grounds” that the appellants had committed an offence against s 83 or had contravened s 12 of the WMPC Act. The revised PANs issued on 1 June 2020 did not contain that precise formulation, but were structured to include a Part detailing the reasons for the belief that the appellants had committed an offence against s 83 or had contravened s 12 of the WMPC Act.
It was not contested that the appellants did not comply with the PANs.
Separate prosecutions were commenced against the appellants alleging:
(a)a contravention of s 83(1) of the WMPC Act by intentionally polluting the environment where serious environmental harm results (“the s 83 charges”);
(b)summary offences under s 75 of the Planning Act 1999 (NT) (“the planning charges”); and
(c)a contravention of s 80(1) of the WMPC Act by intentionally failing to comply with the PANs (“the PAN charges”).
The present appeal concerns the PAN charges only. As at the date of the judgment of the Supreme Court, the s 83 charges and the planning charges were still before the Local Court.
The PAN charges allege that each of the appellants did “intentionally contravene or intentionally fail to comply with the requirements of the amended pollution abatement notice issued by the NT EPA on 1 June 2020.”
The appellants made an application to the Local Court for the hearing of the PAN charges to be adjourned pending the hearing and determination of the s 83 charges. That application was refused on 13 September 2021. That refusal formed a ground of appeal before the Supreme Court, but that ground is not pursued in the appeal to this court.
The relevant provisions of the WMPC Act
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.
The offence of contravening or failing to comply with a PAN is created by s 80 of the WMPC Act, which provides:
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.
Section 82(1) of the WMPC Act provides that a PAN may be amended or revoked by notice in writing given to the person to whom the notice was issued.
The Local Court proceedings
After a contested hearing, on 1 October 2021 the Local Court judge convicted each of the appellants of the PAN offences and, after the parties made submissions on sentence, DWD was fined $250,000.00 and Mr Anthony was fined $50,000.00. Each appellant was also ordered to pay a victim assistance levy, and costs and disbursements incurred by the respondent.
Appeal to the Supreme Court
The appellants appealed to the Supreme Court against both the convictions and the penalties imposed on the following grounds:
(1)The Local Court ought to have acceded to the pre-trial application made by the appellants on 13 September 2021 that the hearing of the PAN charges be adjourned pending the hearing and determination of the s 83 charges on the ground that the appellants would be prejudiced in making full answer to the PAN charges before the hearing and determination on indictment of the s 83 charges.
(2)The Local Court ought to have found that each of the revised PANs was not issued in the form approved by the NT EPA and therefore did not constitute a valid and enforceable PAN for the purposes of s 77 of the WMPC Act.
(3)The Local Court ought to have found that the complaints laid under s 80 of the WMPC Act were brought outside the limitation period prescribed by s 94 of the WMPC Act of 12 months after the NT EPA first became aware of the commission of the offences.
(4)The Local Court 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 each amended PAN therefore did not constitute a valid and enforceable PAN for the purposes of s 77 of the WMPC Act.
(5)The Local Court failed to take into account the fact that Mr Anthony was the sole director and shareholder of DWD and that the penalty imposed upon DWD would be borne by Mr Anthony.
(6)The Local Court erred in finding that the appellants had failed to comply with the pre-hearing procedures of the Local Court (Criminal Procedure) Act 1928 (NT), and that non-compliance was properly taken into account pursuant to s 5(2)(ha) of the Sentencing Act 1995 (NT) in sentencing the appellants.
(7)The Local Court erred in stating that there was “nil utility” as a matter informing the sentencing discretion.[1]
(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.
On 23 May 2022, the Supreme Court dismissed all of those grounds of appeal, and on 11 October 2022 ordered the appellants to pay the respondent’s costs of the appeal to the Supreme Court fixed in the sum of $15,000.
The appeal to the Court of Appeal
The appellants appeal against the decision of the Supreme Court dismissing the appeal from the Local Court on the following grounds:
(1)The intermediate appeal judge ought to have found that the revised PANs issued on 1 June 2020 were not issued in the form approved in writing by the NT EPA and the appellants therefore did not commit an offence under s 80(1) of the WMPC Act.
(2)The intermediate appeal judge ought to have found that the complaints under s 80(1) of the WMPC Act for failure to comply with the revised PANs issued on 1 June 2020 were issued outside the limitation period prescribed by s 94 of the WMPC Act.
Other than contending that the intermediate appeal judge ought to have made these findings, rather than the Local Court, these grounds of appeal are identical to grounds (2) and (3) argued before the Supreme Court. Further, although the appellants’ submissions in the Supreme Court have not been included in the appeal book, it appears from a reading of the judgment of the Supreme Court that the propositions advanced in support of these contentions are largely the same as those put before the intermediate appeal judge and, before that, to the Local Court.
In addition to those substantive grounds of appeal, the appellants also challenge the order that the appellants pay the respondent’s costs of the appeal to the Supreme Court fixed in the sum of $15,000. That ground of appeal is put on the broad basis that the exercise of the costs discretion miscarried.
The appeal to this Court is brought pursuant to s 51 of the Supreme Court Act1979 (NT), which provides:
(1) Where the jurisdiction of the Court in a proceeding or a part of a proceeding was exercised otherwise than by the Full Court, a party to that proceeding may, subject to this Act, appeal to the Court from a judgment given in that proceeding or part, as the case may be.
(2) The Court, when exercising its appellate jurisdiction under subsection (1), may be known as the Court of Appeal of the Northern Territory of Australia.
An appeal from the Supreme Court to the Court of Appeal is not a hearing de novo. The nature of an appeal to the Court of Appeal from the Supreme Court sitting as an intermediate court of appeal has been considered in a number of cases. In NB & Ors v SB & Ors,[2] Grant CJ said:
[T]he right of appeal is subject to two qualifications. First, when considering an appeal from the decision of the Supreme Court, this Court is concerned with whether the Supreme Court committed error. It is not concerned with whether the Local Court committed error, although a failure by the Supreme Court to rectify an error committed by the Local Court may constitute error on the part of the Supreme Court. This will depend upon whether the original error vitiated the determination at first instance and, if so, whether there was error on the part of the Supreme Court in determining to confirm the original decision. Secondly, s 51 of the Supreme Court Act does not permit an appeal against the reasons for the decision of the Supreme Court. It permits an appeal against the correctness of the order or judgment made by the Supreme Court, although that challenge may involve attacking the reasons given for the order or judgment. The order made by the Court in this case was to dismiss the appeal and confirm the decision of the Local Court. In order to succeed in this appeal the appellants must establish that order was wrong.
[Citations omitted]
In Bianamu v Rigby,[3] Kelly and Hiley JJ said:
The role of the Court of Appeal when hearing an appeal against a decision of the Supreme Court when the Supreme Court was sitting as an intermediate court of appeal, has been considered in a number of decisions of this Court. Tiver Constructions Pty Ltd v Clair was an appeal to the Court of Appeal from a decision of the Supreme Court as the intermediate appellate court hearing an appeal from the Workers Compensation Court. Under the relevant legislation, the appeal to the Supreme Court was confined to questions of law. In examining the nature of the appeal to the Court of Appeal, Gallop J referred to the provisions of the Supreme Court Act set out above and expressed the view that the extensive powers granted to the Court of Appeal by s 55 point to the right of appeal to the Court of Appeal being in the nature of a rehearing, and not confined to questions of law. Nevertheless, Gallop J emphasised the undoubtedly correct fact that the appeal to the Court of Appeal involved a review of the decision of the Supreme Court as intermediate court of appeal, and not a rehearing of the case before the Workers Compensation Court. Hence, as the appeal to the Supreme Court was on a question of law only, the appeal from the Supreme Court to the Court of Appeal ought to be similarly confined.
Similarly, in Wilson v Lowery, for the same reason, it was held that the jurisdiction of the Court of Appeal reviewing a decision of the Supreme Court as an intermediate court of appeal hearing an appeal against a decision of the Workers Compensation Tribunal on a question of law, was limited to questions of law, notwithstanding the breadth of the jurisdiction otherwise given to the Court.
However, the focus of each of those decisions, and also of the decision in Lee v McMahon Contractors Pty Ltd, was the ability of the Court of Appeal to become involved in questions of fact that were in the domain of the primary court. Those decisions were not concerned with other kinds of miscarriages of justice that might fall within the jurisdiction of the Court of Appeal.
As a matter of logic, it must be true that in the general run of appeals to the Court of Appeal from the Supreme Court, where the role of the Supreme Court as an intermediate court of appeal is limited by statute (eg to a question of law), the role of the Court of Appeal on appeal from the Supreme Court will be similarly limited. This is because, as pointed out in Tiver Constructions Pty Ltd v Clair and Wilson v Lowery, the role of the Court of Appeal will generally be to determine whether the Supreme Court was in error in its decision.
[Citations omitted and emphasis by underlining added]
Although the subject appeal is not limited to questions of law, the role of this court is to determine whether the Supreme Court committed error. The appellants’ written submissions essentially re-argue the case put before the Supreme Court (and, before that, the Local Court). They do not identify any error in the reasoning process of the intermediate appeal judge. However, the Court was taken to various portions of the immediate appeal judge’s reasons in oral argument. We have carefully examined the reasons for decision of the intermediate appeal judge and, for the reasons which follow, we discern no error in that reasoning process or in the orders ultimately made.
Ground 1: the approved form
The appellants contend that the omission of the words “on reasonable grounds” after the words “I believe” in the revised PANs dated 1 June 2020 means that they are not “in the approved form” as required by s 77 of the WMPC Act, that as a consequence the PANs are invalid, and that their contravention therefore cannot give rise to an offence under s 80(1) of the WMPC Act.
The appellants advance four alternative contentions under this ground.
(a)The appellants’ first contention is that it is an element of the offence under subs 80(1) of the WMPC Act that a person contravenes or fails to comply with a pollution abatement notice. Section 77 of the WMPC Act makes clear the legislative intent – namely, that the power to issue a pollution abatement notice is to be exercised by a notice in the approved form. For criminal liability to be established, the prosecution must prove disobedience to a notice in the approved form.
(b)Second, the requirement that there be a statement of belief “on reasonable grounds” is conducive to the attainment of the aims of the particular section as well as the generalised broader aims of the WMPC Act such as effectively responding to pollution.
(c)Third, even if the offence could arise where a pollution abatement notice deviates from the approved form, the deviation is not excused by s 68 of the Interpretation Act 1978 (NT).
(d)Finally, the criminal law does not countenance a deliberate failure, in this case by Mr Purdon as delegate of the NT EPA, to comply with the approved form when he issued the further amended pollution abatement notices.
None of these contentions should be accepted. The requirement that pollution abatement notices be “in the approved form” picks up the definition of “approved” in s 4 of the WMPC Act. The evidence before the Local Court was that on 12 December 2008, the Executive Director of Environment, Heritage and the Arts within the government department which then had administrative responsibility for the WMPC Act approved a form for the purposes of s 77. At that time, the definition of “approved” in s 4 of the WMPC Act provided for approval by the Chief Executive Officer of the administering department. On 1 January 2013, the NT EPA was established on the commencement of the Northern Territory Environment Protection Authority Act 2012 (NT). From that time, the NT EPA become responsible for the discharge of statutory functions under the WMPC Act, and the definition of “approved” in s 4 of the WMPC Act was amended to mean “approved in writing by the NT EPA”.
The revised PANs dated 1 June 2020 were issued by the Executive Director of Environment Protection, who was a delegate of the NT EPA authorised both to approve forms on its behalf and to issue pollution abatement notices. The court at intermediate level found that although Mr Purdon had the power to approve forms under the WMPC Act, the issuing of the revised PANs on 1 June 2020 was an exercise of the power to issue notices rather than an exercise of the power to approve the form of such notices.[4] However, the Supreme Court went on to find that, as a matter of statutory construction, the issue of the revised PANs on 1 June 2020 in a form which had not been approved did not invalidate them, and that they substantially complied with the approved form in any event.[5]
Against that background, the appellants’ position is predicated on the fact that the form as approved in 2008 contains the formulation “believe on reasonable grounds”, whereas the revised PANs dated 1 June 2020 contains the formulation “believe” together with a separate Part setting out the “Reasons for the belief formed”. The appellants do not suggest any other material difference between the approved form and the revised PANs dated 1 June 2020. The difference is said to be material because the revised PANs thereby lack the “gravity” required by the statutory scheme.
The appellants’ contention that only a notice strictly in the approved form can found criminal liability elevates form over substance. The intermediate appeal judge gave detailed and careful reasons for reaching the conclusion that the PANs were not invalid, notwithstanding the omission of the words complained of by the appellants. His Honour did so by applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority,[6] and concluded:[7]
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.
We respectfully agree with that conclusion. As counsel for the respondent submitted during the hearing of the appeal to this Court, the scheme of the Act is not such as would invite an inference that the legislature intended that there must be strict compliance with the approved form for the issuing of a PAN, such that any deviation from that form would result in the PAN being a nullity. The reasons for that include the following matters.
(a)The wording of s 77 is permissive (ie “the EPA may issue a notice in the approved form”) rather than peremptory (eg “a PAN issued under s 77 must be in the approved form”). Nor does the legislation contain any mechanism for the publication of approved forms in a manner which would suggest that members of the public have an entitlement to, or expectation of, strict compliance with the published version.
(b)There is no statutorily prescribed form in that the Act provides that the same entity that is empowered to issue PANs is also empowered to approve the form in which they are to be issued. That structure gives the NT EPA direct control over the approval of forms in order to increase the flexibility of that process.[8] In addition, the statutory right of review contained in the legislation provides a mechanism by which any prejudice or ambiguity arising from a deviation from the approved form may be remedied.
(c)The primary purpose of issuing PANs under s 77 is to secure compliance with the requirements of the PANs rather than to facilitate prosecutions for failure to comply. Having regard to the other provisions of the legislation dealing with compliance, an approved form is not a necessary aspect of the power to require a person to take action pursuant to a pollution abatement notice.[9] At a more general level, the large number of rights and powers exercisable in the approved form militates against a legislative intention that the availability of those components of the scheme is conditioned on strict compliance.
It follows from that analysis of the legislative scheme and purpose that the appellants’ second and related contention, which is that a strict requirement for a statement of belief “on reasonable grounds” is consistent with the purpose and objectives of the legislation, is likewise without merit. The only argument in favour of that proposition advanced by the appellants is that the words “on reasonable grounds” add gravity to an otherwise bare allegation that a criminal offence has or may be committed. As the respondent has submitted, the purpose of the PANs was to put the appellants on notice as to what they must do, when they must do it, and why. That purpose was fulfilled by the PANs issued on 1 June 2020 notwithstanding the omission, and the PANs in the form in which they were issued did not suffer from any ambiguity or give rise to any prejudice to the appellants.
We also accept the respondent's submission that the omission of the words “on reasonable grounds” did not alter the substance of what was conveyed. In the revised PANs, Mr Purdon attests to his belief and the grounds for that belief. Whether or not those grounds are reasonable “has always been treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal”.[10] The incorporation of, or reference to, Mr Purdon’s own subjective opinion as to the objective reasonableness of his grounds for belief would have added nothing of substance to the PANs. In fact, the form and content of the revised PANs issued on 1 June 2020 is far more informative in this respect than the approved form. That is because the revised PANs specify in great detail the grounds upon which the person issuing them formed the belief that an offence had been or was likely to be committed, allowing the recipient to judge the reasonableness of those grounds.
As to the appellants’ third contention, as the PANs are substantially compliant with the approved form, they are saved by s 68 of the Interpretation Act, which provides:
Strict compliance with the forms prescribed by or under an Act is not necessary and substantial compliance, or such compliance as the circumstances of a particular case allow, is sufficient.
The appellants have provided no compelling reason why this section should not apply. As the intermediate appeal judge said:[11]
… 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 and Re Monger; Ex Parte Velsberry Pty Ltd .
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.
As to the appellants’ final contention, that the criminal law does not countenance a deliberate failure to comply with an approved form, and that this is the correct characterisation of what Mr Purdon, as delegate of the NT EPA, did in this case, neither the factual nor the legal basis for this contention can be accepted.
So far as the factual basis of this contention is concerned, Mr Purdon’s uncontested evidence was that he was unaware of the existence of the approved form. That being the case, it can hardly be said that he deliberately failed to comply with it. That is sufficient to dispose of the appellants’ fourth contention.
So far as the legal basis for the contention is concerned (ie that the subjective intention of Mr Purdon is relevant to whether the PANs are valid), the appellants rely on the following passage from the reasons of one member of the bench in R v Haynes and Haynes:[12]
There has been a deliberate departure from the prescribed form: and for the title of the Justices of the Peace Act, 1908, there has been substituted a statement of the supposed effect of the Act with regard to the punishment of persons making false declarations. The provision of the Interpretation Act was intended, I think, to cover cases where an attempt had been made to follow the prescribed form, and not to meet cases where that form had been deliberately ignored and something different had been substituted. I think therefore, that the case is not covered by the Interpretation Act, and that the declaration cannot be treated as having been made under the Justices of the Peace Act.
In R v Haynes and Haynes, the New Zealand Court of Appeal was considering an appeal against conviction by a husband and wife who were found guilty of making a false declaration in respect of a claim under an insurance policy. The form of declaration signed by the wife, on a form printed by the insurance company, was in the following terms.
And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of an Act of Parliament rendering persons making a false declaration punishable for wilful and corrupt perjury.
The appellants were charged with an offence under s 133 of the Crimes Act, 1908 which provided:
Everyone is liable to two years’ imprisonment with hard labour who makes a statement or declaration which would amount to perjury if made on oath or affirmation in a judicial proceeding, upon any occasion on which he is permitted by law to make any statement or declaration before any officer authorised by law to permit it to be made before him, or before any notary public to be certified by him as such notary.
The relevant provisions in the Justices of the Peace Act, 1908 were as follows:
287.Where by any law now in force a declaration is directed or authorised to be made and subscribed in the form prescribed by the Imperial Act known by the short title of “The Statutory Declarations Act, 1835”, it shall be sufficient, in case the declaration is to be made within New Zealand, if such declaration is made and subscribed in the form (No. 50) in the Second Schedule hereto.
288.Any Justice, solicitor, notary public, or other officer now by law authorized to administer an oath, or any Postmaster from time to time authorized for that purpose by the Governor by notice in the Gazette, may take and receive the declaration of any person voluntarily making the same before him in the form (No. 50) aforesaid.
289.If any declaration made under this Act is false or untrue in any material particular, the person wilfully making such a false declaration is guilty of perjury.
Form 50 in the Second Schedule to the Justices of the Peace Act was as follows:
I, A.B., of [Insert place of abode and occupation], do solemnly and sincerely declare that [Insert facts]. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of “The Justices of the Peace Act, 1908.”
The appellants in that case argued that the findings of guilt could not stand as the declaration was not in the prescribed form. The respondent relied on s 6 of the Acts Interpretation Act, 1908 which provided:
Whatever forms are prescribed, slight deviations therefrom, but to the same effect and not calculated to mislead, shall not vitiate them.
Chief Justice Stout (dissenting) would have upheld the convictions by applying s 6 of the Acts Interpretation Act.
Justice Edwards allowed the appeal, reasoning:[13]
(a) that “to substitute for a portion of a prescribed form which consists solely of a reference to the statute by its short title, a statement, however correct, of the effect of the sections which deal with statutory declarations is … neither in form nor in effect a mere deviation from the prescribed form”;
(b) that the substituted form did not in any case correctly state the law;
(c) not only must the declaration be in Form 50 to bring it within s 289, but the authority of the Justice of the Peace to take the declaration under s 288 is expressly limited to an authority to take it in that form, the only exception being a deviation so trifling as to leave the form in substance the form prescribed.
Justice Cooper allowed the appeal on the ground that the deviation from the prescribed form was not ‘slight” within the meaning of the Acts Interpretation Act, as the substitution of “an Act of Parliament” for “The Justices of the Peace Act” left the matter open to conjecture as to which Act was intended.[14]
Justice Hosking also allowed the appeal on the ground that the deviation from the prescribed form was not a “slight” deviation.[15]
The passage relied upon by the appellant comes from the judgment of Sim J who, like the other judges in the majority, allowed the appeal on the ground that s 6 of the Acts Interpretation Act did not apply because the deviation from the prescribed form was not slight and added, “nor can the form used be said to be of the same effect as that prescribed”. There followed the passage relied upon by the appellants, but the basis of the decision was not that a subjective intention to use a form which was different from the prescribed form necessarily took the form in question outside the scope of s 6 of the Acts Interpretation Act. Rather, in the case of all of the judges in the majority, it was that the section did not apply on the application of its terms to the form in question.
The appellants contend that the passage they rely on from R v Haynes and Haynes has been cited in a number of Australian decisions, including Swann v R,[16] SPNZT Ltd v Trecap Pty Ltd[17] and Banjima People v Western Australia (No 2).[18]
Swann v R was an application for leave to appeal against conviction. The appellant was convicted on one count of making a false declaration contrary to s 170 of the Criminal Code, which provided:
Any person who, on any occasion on which he is permitted or required by law to make a statement or declaration before any person authorized by law to permit it to be made before him, makes a statement or declaration before that person which, in any material particular, is to his knowledge false, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
The declaration signed by the appellant stated (relevantly):
STATUTORY DECLARATION
Evidence Act 1906 (as amended)
…………
I make this solemn declaration by virtue of section 106 of the Evidence Act 1906 (as amended).
Declared at ESPERANCE this EIGHTEENTH day of NOVEMBER 1996
Signature of Declarant [G M Swann]
Declared before me:
Surname HOLTHOUSE Other Names PIETA
The statutory declaration was required pursuant to reg 5 of the Road Traffic (Licensing) Regulations 1975 made pursuant to s 111(5) of the Road Traffic Act 1974. The regulation provided that an applicant for an issue or transfer of a licence can be required to furnish proof of his ownership of the vehicle “by statutory declaration or otherwise”. Section 106 of the Evidence Act 1906 provided that:
It shall be lawful for any justice of the peace or other person by law authorized to administer an oath to take and receive the declaration of any person voluntarily making the same before him in the following form, namely -
I, A.B., [insert place of abode and occupation], do solemnly and sincerely declare that [here state the facts], and I make this solemn declaration by virtue of section 106 of the Evidence Act 1906.
Declared at this day of 19 , before me,
C.D., justice of the peace [or as the case may be].
The form of declaration signed by the appellant was missing the underlined words “do solemnly and sincerely declare that”, and the appellant in that case contended that no offence had been committed because the statutory declaration was not in the prescribed form.
In dismissing the appeal, Malcolm CJ (with whom Pidgeon and Ipp JJ agreed) posed the test to be applied as follows:[19]
The omission of the words in italics has the effect that there has been a departure or deviation from the form as prescribed in s 106 of the Evidence Act. Section 74 of the Interpretation Act 1984 provides that:
Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used.
The question is whether the omission of the relevant words constitutes a deviation which materially affects the substance of the matter or is likely to mislead.
In reaching that conclusion, Malcolm CJ cited the relevant passages from the reasons of each member of the bench in R v Haynes and Haynes in support of the proposition that the relevant test was whether the omission materially affects the substance of the matter or is likely to mislead. In doing so, Malcolm CJ quoted this part only of the passage from the reasons of Sim J which is relied upon by the appellants:
The provision of the Interpretation Act was intended, I think, to cover cases where an attempt had been made to follow the prescribed form, and not to meet cases where that form had been deliberately ignored and something different had been substituted.
His Honour then concluded:[20]
In this case there has been a very substantial attempt to incorporate the form by virtue of the heading and other aspects which I have mentioned. In my opinion the omission of the relevant words did not materially affect the substance of the relevant form as a statutory declaration incorporating an application to licence a vehicle. The heading and the critical words immediately prior to the space for signature were such as to prevent any possibility that the declarant would be misled, or that the omitted words materially affected the substance of the document.
This conclusion does not support the contention that a subjective intention to ignore or alter a prescribed form will prevent the application of provisions such as s 6 of the Acts Interpretation Act (NZ), s 74 of the Interpretation Act (WA) or s 68 of the Interpretation Act (NT). Similarly, neither SPNZT Ltd v Trecap Pty Ltd nor Banjima People v Western Australia (No 2) adopts or endorses a test by which a subjective intention to use something other than a prescribed form precludes the application of the substantial compliance exception in the interpretation legislation.
Finally under this ground, the appellants also contended that the PANs issued on 1 June 2020 were amended PANs issued pursuant to s 82 of the WMPC Act and not fresh PANs issued under s 77 of that Act. That characterisation does not assist the appellants’ case. As the respondent submitted, it does not matter for the purposes of this ground of appeal whether they are categorized as amended PANs or fresh PANs. If they are amended PANs the challenge on the basis of form must fail because the only requirement for an amended PAN under s 82 is that it be in writing. It does not have to be in the approved form.
For these reasons, Ground 1 should be dismissed.
Ground 2: the limitation period
By this ground the appellants contend that a complaint for the offences was not brought before 12 months after the NT EPA first became aware of the commission of the offence as required by s 94 of the WMPC Act. As described at the commencement of these Reasons, the NT EPA originally issued pollution abatement notices to the appellants in October 2018. The timeframes for compliance under the original PANs were extended on review on 10 January 2019 under s 111 of the WMPC Act, and again extended unilaterally on 1 June 2020 under s 82 of the WMPC Act. All of those notices required that the appellants undertake substantially the same remedial action. The appellants did not comply with the original or the revised PANs within the timeframes as amended. The complaints filed on 24 November 2020 were laid more than 12 months after the date for compliance with the original PANs but less than 12 months after the date for compliance with the revised PANs issued on 1 June 2020.
The appellants’ submission is that, for the purpose of the limitation provision in s 94 of the WMPC Act, the non-compliance with the original PANs constitutes the same offences as the offences charged in the complaints, and thus the NT EPA became aware of the commission of the offences more than 12 months before complaints were laid.
The intermediate appeal judge rightly rejected this contention.[21] As his Honour stated, 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 revised PANs issued on 1 June 2020. Any intentional failure of the appellants to comply with the requirements of the revised PANs constituted an offence which was committed on the date that the failure or contravention occurred, that is to say on 17 June 2020, which was the primary date specified for compliance.[22] The period of 12 months for the commencement of a prosecution for a breach for that failure or contravention therefore commenced on 18 July 2020 and expired on 17 July 2021. The proceedings at issue in the present appeal were commenced in the Local Court within that 12 month period, on 24 November 2020.
The appellants argue that the sole purpose of issuing the amended PANs was to avoid the limitation period for instituting a prosecution under s 94 of the WMPC Act and that this is not permissible. The appellants assert that there is an implied limitation in the power of amendment in s 82 of the WMPC Act to the effect that any amendment to a PAN must be made before the expiration of the time limit for launching a prosecution for failure to comply with the original PAN. Even if it is accepted that the PANs issued on 1 June 2020 were PANs amended pursuant to s 82 of the WMPC Act and not fresh PANs under s 77 of the WMPC Act, that contention cannot be accepted. First, there is no express limitation in s 82 as one would expect if the legislature intended the power granted to be so limited. Second, such an implied limitation would not advance the purpose of the legislation set out in s 5 of the WMPC Act. As the intermediate appeal judge pointed out:[23]
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.
Again, we respectfully agree with that conclusion. As the respondent identified in its written submissions, that result is also consistent with the reasoning of the English High Court in John Mann International Limited v Vehicle Inspectorate.[24] In that case, the Vehicle Inspectorate issued a Notice requiring production of documents that the appellants were obliged to keep under the relevant legislation by a certain date. Not all of the documents required were produced, so the Vehicle Inspectorate issued a second notice, and then a third, each of which gave further time for compliance. The appellants in that case argued that there was no power in the Vehicle Inspectorate to issue further notices once the time for compliance with the original notice had expired; that the offences were committed by the failure to produce the relevant records in response to the first notice; and that a failure to respond to further notices relating to the same records could not give rise to further offences.
The English High Court rejected that argument, accepting the respondent’s contention that each notice gave rise to fresh obligations on the part of the appellant, and that the failure to comply with each notice gave rise to a criminal offence. Where a failure to comply with a notice results in a conviction, then a further prosecution based upon failure to comply with a further notice in relation to the same records could not succeed; but where earlier notices have not given rise to a prosecution, then there is no reason why an information cannot be laid following failure to comply with a second or third notice.
The appellants sought to invoke the principle in Saraswati v The Queen[25] that when a statute deals specifically with a matter and makes it the subject of a condition or limitation, it excludes the right to use a general provision in the same statute to avoid that condition or limitation. The appellants argued that there was a specific limitation on the right to prosecute a person for failure to comply with a PAN – namely that the prosecution must be instituted within 12 months of the date the NT EPA became aware of the breach – and that it was impermissible to use the general power of amendment in s 82 of the WMPC Act to avoid that limitation.
That contention, likewise, cannot be accepted. As explained above, the effect of issuing an amended PAN is not to extend the time for prosecuting a person for a failure to comply with an earlier PAN. After the expiry of the limitation period, the person is immune from prosecution for failure to comply with the earlier PAN (although, unless and until revoked it continues to have other effects, for example being registered on the title to the affected land). The issue of an amended PAN, giving a later date for compliance, establishes a fresh obligation on the recipient and failure to comply by that extended date for compliance gives rise to a fresh offence which is subject to a fresh limitation period.
Further, the power to amend in s 82 of the WMPC Act cannot be described as a “general” provision in comparison the limitation period in s 94 of the WMPC Act. Neither can the amendment or the issuing of a new PAN properly be characterised as an indirect way of doing what is prohibited directly by the statute in terms of the time limitation to lay a complaint. The two provisions serve different purposes and have different fields of operation.
For these reasons, Ground 2 should be dismissed.
Ground 3: costs
The appellants have also appealed against the decision of the intermediate appeal judge ordering the appellants to pay the respondent’s costs fixed at $15,000. This ground of appeal relies on the decision in Thyer v Whittington (No 2) [2018] NTSC 31,[26] which is to the effect that the award of costs in an appeal from the Local Court to the Supreme Court (including the quantum of those costs) is a discretionary matter; that costs will ordinarily be awarded on a party and party basis; and that the exercise of that discretion will be informed by factors such as the length and complexity of the case, the added cost and inconvenience to which an order for taxation would give rise, and the interests of justice generally. In the result, the decision also made reference to an historical South Australian practice of awarding costs in accordance with the prescribed scale applied in the court of summary jurisdiction. In the particular circumstances under consideration in Thyer, costs were awarded in accordance with that practice.
The appellants’ reliance on Thyer is misplaced insofar as it seeks to characterise that result or the prescribed scale as the “benchmark” position in appeals from the Local Court to the Supreme Court. That case is authority for the legal principles it sets out, not for the facts or quantum of costs awarded in the particular circumstances of that case.
The award of costs being discretionary, the principles in House v The King apply. The appellants have identified no error of principle in the exercise of the discretion. On the hearing of the appeal, counsel for the appellants referred to the following passage in the costs decision:[27]
It is unlikely that appellants such as the present will be deterred from commencing appeals from the Local Court in matters such as the present if they are required to pay costs, if unsuccessful, on a more commercial basis than Grant CJ found was appropriate in Thyer (No 2). It would also not be unjust to expect the appellants to effectively bear a higher proportion of the costs incurred by the respondent, a publically funded body, in circumstances where the offences occurred in the context of a commercial operation.
Counsel for the appellants contended that in this passage the intermediate appeal judge had taken into account irrelevant considerations, namely that the appellants were likely to have money and that the offences took place in the context of a commercial operation.
The first thing to be said about that contention is that the intermediate appeal judge did not give as a reason for ordering costs in excess of the Local Court scale that the appellants were likely to have money. His Honour was simply referring to the competing considerations identified in Thyer (No 2), namely that a successful litigant should be entitled to costs on the one hand and, on the other hand, that people who feel aggrieved by what they contend to be a wrong conviction ought not be deterred from seeking justice on appeal by the prospect of having to pay substantial costs if they are unsuccessful.
The second thing to be said about that submission is that it was a relevant consideration in the discretionary equation, and in determining whether costs in excess of the Local Court scale ought to be awarded, that these offences occurred in a commercial context and that these appeals were brought in attempted vindication of what is essentially a commercial interest. The intermediate trial judge properly took into account each of these factors and, in addition, the fact that the appeals against conviction were considerably more complex than the standard appeal from the Local Court, and raised important questions of statutory interpretation within a reasonably complex statutory context.[28]
For these reasons, Ground 3 should be dismissed.
Orders
We make the following orders:
1.The appeal is dismissed.
2.The parties have liberty to apply in relation to the costs of the appeal within 28 days.
_________________________
[1]This statement was described by the Supreme Court as "somewhat cryptic", but was probably a reference to the fact that the appellants were not entitled to any discount or reduction in sentence for the utilitarian value of a guilty plea.
[2] NB & Ors v SB & Ors [2020] NTCA 2 at [64].
[3] Bianamu v Rigby [2021] NTCA 4 at [119]-[122].
[4] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [45]-[47].
[5] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [51]-[63].
[6] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355.
[7] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [59]-[60].
[8] See, for example, R v Turner (2001) 10 Tas R 233 at [13]-[14].
[9] See, for example, WMPC ACT, ss 78 and 82.
[10] The respondent relies upon Liversidge v Anderson [1942] AC 206 at 228 (per Lord Atkin) and George v Rockett (1990) 170 CLR 104 at 112, 116 for the quoted proposition.
[11] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [62]-[64].
[12] R v Haynes and Haynes [1916] NZLR 407 at 419.
[13]R v Haynes and Haynes [1916] NZLR 407 at 416.
[14] R v Haynes and Haynes [1916] NZLR 407 at 418-419.
[15] R v Haynes and Haynes [1916] NZLR 407 at 420.
[16] Swann v R [1999] WASCA 106 at [30]-[31].
[17] SPNZT Ltd v Trecap Pty Ltd [2016] WASC 75 at [115].
[18] Banjima People v Western Australia (No 2) (2013) 305 ALR 1 at [895].
[19] Swann v R [1999] WASCA 106 at [16]-[17].
[20] Swann v R [1999] WASCA 106 at [31].
[21] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [65]-[68].
[22] That was the date specified for the performance of the principal remedial actions. Other requirements in the PANs had later dates specified for compliance.
[23] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 37 at [67].
[24] John Mann International Limited v Vehicle Inspectorate [2004] EWHC 1236 (Admin).
[25] Saraswati v The Queen [1990] 172 CLR 1.
[26] Thyer v Whittington (No 2) [2018] NTSC 31.
[27] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 81 at [10].
[28] DWD Project Pty Ltd & Anor v Northern Territory Environment Protection Authority [2022] NTSC 81 at [9].