Environment Protection Authority v AGL Upstream Investments Pty Ltd

[2018] NSWLEC 32

Land and Environment Court

New South Wales

Medium Neutral Citation:	Environment Protection Authority v AGL Upstream Investments Pty Ltd [2018] NSWLEC 32
Hearing dates:	29-30 January 2018
Date of orders:	16 March 2018
Decision date:	16 March 2018
Jurisdiction:	Class 5
Before:	Pain J
Decision:	The Defendant’s notice of motion dated 13 November 2017 is dismissed
Catchwords:	PROCEDURE – prosecution – whether summons duplicitous
Legislation Cited:	Companies Act 1958 (Vic) s 107 Occupational Health and Safety Act 1983 s 15 Occupational Health and Safety Act 1985 (Vic) s 21 Protection of the Environment Operations Act 1997 ss 64, 193, Sch 1
Cases Cited:	Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150 Byrne v Baker [1964] VR 443 Chugg v Pacific Dunlop Ltd [1988] VR 411 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Hakim v Waterways Authority of NSW (2006) 149 LGERA 415; [2006] NSWCCA 376 Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337 Rixon v Thompson (2009) 22 VR 323; [2009] VSCA 84 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Texts Cited:	Archbold, Pleading, evidence and practice in criminal cases, (43rd ed, 1988, Sweet & Maxwell)
Category:	Procedural and other rulings
Parties:	Environment Protection Authority (Prosecutor) AGL Upstream Investments Pty Ltd (Defendant)
Representation:	COUNSEL: P English (Prosecutor) D Jordan SC (Defendant)   SOLICITORS: Office of Environment and Heritage (Prosecutor) Ashurst (Defendant)
File Number(s):	17/164380

Judgment

1. The Defendant AGL Upstream Investments Pty Ltd is charged with an offence under s 64(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) relating to the management of three produced water tanks at its coal seam gas wells at the Camden Gas Plant (the AGL premises) Menangle Park during a flood event along the Nepean River on 5 June 2016. As identified in the summons the Prosecutor, the Environment Protection Authority (EPA), alleges that the Defendant contravened Condition 01.1 of Environment Protection Licence (EPL) 12003. Condition 01.1 states:

Licensed activities must be carried out in a competent manner. This includes:

(a)   The processing, handling, movement and storage of materials and substances used to carry out the activity, and

(b)   The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.

2. The Prosecutor does not rely on any of the matters specified in (a) or (b). It relies on the first sentence of Condition 01.1. That is, the Prosecutor alleges that the Defendant contravened the requirement that “licensed activities... be carried out in a competent manner”.

3. The licensed activity in EPL 12003 is specified in cl 31(1), Sch 1 to the POEO Act as being the following:

31 Petroleum exploration, assessment and production

(1)   ...petroleum exploration, assessment and production, meaning the following:

(a)   exploratory activities to identify petroleum reserves,

(b)   any testing or sampling carried out in relation to that exploration,

(c)   the production of petroleum.

4. The Defendant has filed a notice of motion dated 13 November 2017 which seeks better particulars (prayer 1) and that the summons be redrafted to specify a single offence (prayer 2) as it is duplicitous.

5. The Prosecutor has prepared a draft amended summons which specifies the manner of breach as follows:

1.   An order that the defendant, AGL Upstream Investments Pty Ltd (ACN 115 063 744), whose registered office is at Level 24, 200 George Street, Sydney, NSW, appear before a Judge of the Court to answer the charge that, between about 3 June 2016 and about 6 June 2016 inclusive, at or near the locations which at all relevant times Environment Protection Licence Number 12003 applied to, including but not limited to Lot 10 in DP 1022204, Lot 1 in DP 1067320 and Lot 2 in DP 1133910, in the State of New South Wales (Licenced Premises), it committed an offence against section 64(1) of the Protection of the Environment Operations Act 1997 in that it was the holder of a licence, a condition of which was contravened by a person.

Particulars

a.   Licence

Environment Protection Licence Number 12003.

b.   Licence condition contravened

Condition 01.1, which states: “Licensed activities must be carried out in a competent manner. This includes:

(a)   The processing, handling, movement and storage of materials and substances used to carry out the activity, and

(b)   The treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.”

c.   Manner of breach

The produced water tanks (“the tanks”) at well locations MP15, MP16 and EM21 (EM21 is also known as EM-1V):

(i)   were not, in circumstances where flooding was possible, secured to the ground to prevent damage to the tanks or prevent the tanks from being washed away; and or

(ii)   were not, in circumstances where flooding was possible, moved to higher ground; and/or

(iii)   were not, in circumstances where flooding was possible, emptied of their contents; and or

(iv)   were not, in circumstances where flooding was possible, secured shut, so as to preclude escape of the contents of the tanks; and or.

(v)   were not, in circumstances where flooding was possible, dealt with, treated or handled in a manner to prevent the tanks being washed away.

As a consequence of the matters at (i) – (iv) above, the tanks were washed away during a flood event and the produced water in the tanks escaped into the flood waters.

2.   An order that the Defendant be dealt with according to law for the commission of the above offence.

6. This draft amended summons was the focus of the parties’ arguments although yet to be filed. Following further discussion in the course of the hearing the Prosecutor is to provide further particulars of the offence charged with the possibility of a further draft amended summons to be prepared due to the difficulty of understanding the manner of breach alleged by the Prosecutor in draft par 1c. Accordingly part of the notice of motion (prayer 1) has been stood over until that has occurred and I do not need to refer to the parties’ evidence in that regard. The parties agreed that the duplicity argument could be considered nevertheless, the subject of the relief sought in prayer 2 of the notice of motion. I should note that I am answering this issue on the general basis of whether it is permissible to rely on one offence particularised by reference to the three separate tanks or whether the particulars relied on are in fact three separate offences and should be charged accordingly. I will not have regard to the detailed manner of breach articulated in the draft amended summons as these particulars were not ultimately finalised at the hearing before me as the possible permutations as drafted required clarification.

7. The Prosecutor has confirmed in correspondence that the offence is proved according to the Prosecutor if any one of the three tanks identified as MP15, MP16 and EM21 particularised in the draft amended summons are shown to have been dealt with incompetently. If the Prosecutor had accepted it must prove that all three tanks had been incompetently handled in order to prove the offence the Defendant would not have filed its notice of motion.

Evidence

Affidavit of Mr Payne

8. The Prosecutor read the affidavit of Mr Payne operations officer with the EPA affirmed 29 May 2017. Mr Payne attended a site inspection of the AGL premises on 8 June 2016. Having visited the site of the MP15 tank, Mr Payne noted that the cyclone fence around the tank had been dislodged and appeared to be bent inward. The tank itself was on its side. Mr Payne also visited the site of the M16 and MP25 tanks. The site was positioned on a sloping bank and had a raised pad to hold the tanks to the bank. The tanks were not sitting flat on the raised pad.

9. Mr Payne attended a further site visit on 24 November 2016. He set out a conversation with Mr Clifton, then environmental manager of the Defendant, in which Mr Clifton confirmed that “parts of Finns and Woodbridge Road [Menangle] were covered with water but still accessible” on the day of the flood.

10. Mr Payne visited the site of MP15 again, confirming that the fencing around the well head had been modified since his previous visit. Mr Payne then visited the site of tanks MP16 and MP25. The tank he had seen during the June 2016 visit had been moved and was located on the flat upper part of the dirt mound where Mr Clifton had advised it was located prior to being moved by the flood waters. Mr Payne recalled a conversation with Mr Clifton, in which Mr Clifton said that he had travelled down Camden Park Road at around 8.00pm to 8.30pm on 5 June 2016 when the road was still accessible although the water had been deep. Mr Clifton had gone to access EM21 but the water was too deep to go through the gate. Until 8.00pm to 8.30pm, it had been “very easy” to move the tanks.

11. On 28 November 2016, Mr Payne contacted Wollondilly Shire Council to find out which roads may have been closed due to the flood event on 5 June 2016. Mr Payne spoke with Wollondilly Shire Council operations manager, Mr Nyholm, who confirmed that the Menangle Bridge over the Nepean River had been closed around 4.00pm on the day of the flood. Mr Payne also contacted WaterNSW in relation to dam flows into the Nepean River during the period of the flood event.

12. Annexed to Mr Payne’s affidavit was a copy of a document titled “AGL Upstream Gas – Procedure – Field Production Flood Management”, photographs of the MP15, MP16 and MP25 sites, email requests to WaterNSW for information on water releases for dams connected to the Nepean River and an email and letter from the Defendant to the Prosecutor providing a Rural Fire Service log indicating that the Menangle Bridge had been closed by 4.17pm on 5 June 2016.

Affidavit of Mr Clyne

13. The Prosecutor read the affidavit of Mr Clyne head of operations in the EPA Gas Regulation Branch affirmed 29 May 2017. On 28 June 2016 Mr Clyne visited the Defendant’s premises. Mr Clyne inspected coal seam gas (CSG) well sites MP13 and MP30 which had been affected by the flood event of 5 June 2016. The water tank normally located adjacent to MP13 and MP30 had been moved.

14. Mr Clyne then visited the MP15 site. Much of the MP15 well infrastructure was still covered by water. There was flood debris trapped in the fence around the well and water was pooling around it like a dam or lagoon. Mr Clyne had a conversation with Mr Clifton, who confirmed that MP15 had been washed away in the flood and the produced water in the tank had been discharged.

15. Mr Clyne also visited MP16 and MP25. Mr Clifton showed Mr Clyne where the tank had been washed away during the flood event and noted that the tank had been recovered. He confirmed that the tank had been badly damaged and produced water had spilled out. Mr Clifton detailed the steps taken by the Defendant on the day of the flood in relation to tanks MP16 and MP25. All electronic equipment was removed and the wells were shut in. The Defendant did not remove the tanks at the time they removed the equipment, as they did not believe the tanks would flood. By the time it was determined that the tanks should be removed, the floodwater had covered the access roads. Attached to Mr Clyne’s affidavit were photos taken at the MP15, MP16 and MP25 sites.

16. On 24 November 2016, Mr Clyne again visited the Defendant’s premises to inspect rehabilitation activities. During the inspection, Mr Clyne visited MP16 and MP25 and confirmed that the tanks had been moved back onto the pads they were situated on prior to the flood. Mr Clyne also drove past EM21 before arriving at a gate. Mr Clifton said that the Defendant could not access anything beyond the gate during the flood as the area had been covered with water.

17. On 2 March 2017, Mr Clyne conducted interviews with Mr Shane Bottin, field production supervisor of the Defendant and Mr Clifton. Transcripts of both interviews were attached to Mr Clyne’s affidavit.

Record of interview with Mr Bottin

18. Mr Bottin first became aware of the possibility of flooding on Friday 3 June 2016. None of the indicators suggesting an appropriate time to remove the tanks which had been relied on during previous floods had been reached on 5 June 2016. The water level at the Menangle Bridge had not been recorded in the working diary for the Camden Gas Plant.

19. At around 4pm on Friday 3 June 2016, Mr Bottin had spoken with Mr Clifton about the water level at the wells. At that time it appeared that the tanks were not going to be affected. At 9.46am on Sunday 5 June 2016 the Bureau of Meteorology (BOM) released a flood warning that the Nepean River and Hawkesbury River at Menangle would reach approximately 11 metres. Mr Bottin said that the BOM had previously released flood warnings which did not eventuate. The Defendant’s flood management plan required tanks MP16 and MP25 to be removed prior to a flood level three (equivalent to a water level of 10 metres). Mr Bottin said the increase from a flood level one to a flood level three was very fast on 5 June 2016. At 9.46am on 5 June 2016 the Defendant’s personnel moved the well site equipment. At around 8pm on 5 June 2016 further personnel were sent to check the wells as the river level had increased dramatically.

20. It could take anywhere between half an hour and a couple of hours to remove the tanks. Although the flood management plan required the Defendant to monitor the accessibility of roads, the status of the roads was not reported to Mr Bottin on 5 June 2016 as no one had been allocated to check road access.

Record of Interview with Mr Clifton

21. At around 9am on Friday 3 June 2016 the Defendant became aware that heavy rain was predicted over the course of the next three days. In previous floods, MP25 had been the first well to flood and was therefore in the highest category in the flood management plan. MP16 was in the same location and would also likely flood.

22. MP16 and MP25 were not removed because by the time the flood management plan required the tanks to be removed relative to the water level, the roads leading into the Defendant’s premises were inaccessible.

23. The water level had not yet reached the requirement for a flood level three, which required MP16 and MP25 to be moved. At 9.46am on Sunday 5 June 2016 the Defendant had staff on site at MP16 and MP25 removing electronic equipment from the wells. Mr Bottin had sent an operator to MP16, MP25 and MP26 prior to the 10 metre mark to assess the situation and to remove the electronic equipment in accordance with the flood management plan.

Affidavits of Ms Hughes

24. The Defendant read the affidavit of Ms Hughes solicitor affirmed 13 November 2017. A letter dated 3 November 2017 from the Defendant’s solicitor to the Prosecutor alleged the charge was duplicitous as it referred to three separate tanks. An email dated 8 November 2017 from the Prosecutor to the Defendant advised that they were seeking instructions in relation to the letter of 3 November 2017.

25. The Defendant read a second affidavit of Ms Hughes affirmed 30 November 2017, made in response to the affidavits of Mr Payne and Mr Clyne. Ms Hughes visited the Defendant’s website and downloaded a map titled “Camden Gas Project AGL Well Heads” which she annexed to her affidavit. Referring to Mr Payne’s affidavit at par 20, it was noted that “[a]djacent to the MP16 and MP25 CSG well site is a pad which is located approximately 20 metres east of well MP25…” Mr Payne did not describe a similar “pad” with respect to MP15. Mr Payne also did not describe visiting EM21.

26. A copy of a document titled “AGL Upstream Gas – Procedure – Field Production Flood Management” which was annexed to Mr Payne’s affidavit was also annexed to Ms Hughes’ affidavit. A copy of EPL 12003 was also annexed to Ms Hughes’ affidavit.

27. Ms Hughes extracted the following text from an email annexed to Mr Payne’s affidavit from Mr Clifton to Mr Kelly dated 9 June 2016:

Total volume of produced water lost from the three water tanks at MP15, MP16 and EM21

AGL records indicate that a total volume of approximately 7,632 litres of produced water was released from the water tanks at MP15 (159 L), MP16 (3,816 L) and EM21 (3,657 L).

28. Ms Hughes extracted the following text from a letter annexed to Mr Payne’s affidavit from Mr Clifton to Mr Payne dated 27 September 2016:

In fact, the EM21 water tank did not break free from its operational position. It did, however, overturn and spill its content (being the 3,657L referred to in paragraph M of the Notice).

29. Referring to Mr Clifton’s affidavit and the transcript of the interview with Mr Bottin, Ms Hughes extracted the following text:

Q 136 How hard is it to remove produced water tanks on site?

A It can take half an hour, it can take a couple of hours, depending on the availability of personnel and distance apart they are.

Q 137 But let’s say just generally speaking – well, from the time you got to the site if you make the decision that we’re going to remove the tanks, how long would it take you to lift those tanks up – to remove ---

A It depends on those tanks. Like I said, it depends on that tank. So some can take half an hour. Some could be a couple of hours. It depends on the position of the tank and everything involved.

30. On 8 November 2017, Mr Clifton emailed to Ms Hughes a document titled “Re: GPS Survey of well head 7 enclosure – Camden gas field.” A copy of the document was annexed to her affidavit. On 13 November 2017, Mr Clifton emailed to Ms Hughes a document titled “MP15 – Date of survey 8/8/2016 – GRID: (MGA56) – DATUM: (AHD).” A copy of the document was annexed to her affidavit.

31. On 24 November 2017, Ms Hughes sought assistance from her secretary to obtain a topographical map of the area around the Defendant’s Camden Gas Plant. A copy of the map was attached to her affidavit.

32. On 26 November 2017, Ms Hughes spoke with Mr Franke, operations superintendent at AGL, via telephone. She asked whether wells EM6, EM10, EM11, EM15, EM40, GL8, MP13, MP17, EM39, EM08, MP30 and EM13 had tanks next to them during the June 2016 flood. Mr Franke said all of the tanks except MP13 and EM08 did. The approximate distance between the well head and tank (where there was one) was two to three metres. All of the tanks were at about the same elevation as their respective well heads.

33. On 30 November 2017, Ms Hughes used “Google Earth Pro” to create an aerial image showing the locations of MP15, MP16 and EM21. A copy of the image was annexed to her affidavit.

Affidavit of Mr Anderson

34. The Prosecutor read the affidavit of Mr Anderson principal legal officer at the EPA affirmed 16 November 2017 which attached correspondence between the parties and a map showing the location of the three tanks.

Exhibits

35. There were three exhibits:

1. Exhibit 1 was the working folder and included:

1. notice of motion dated 13 November 2017;

2. affidavit of Ms Rebecca Hughes of 13 November 2017;

3. summons dated 1 June 2016;

4. the Defendant’s submissions;

5. the Prosecutor’s submissions;

6. affidavit of Ms Hughes of 30 November 2017;

7. affidavit of Mr Franke of 23 January 2018;

8. the exhibit to Mr Franke’s affidavit of 23 January 2018; and

9. a summary map of the “Camden Gas Project AGL Well Heads”.

2. Exhibit 2 consisted of tabs 10.1-10.8 of Exhibit 1 which were the annexures to Mr Payne’s affidavit:

1. a document titled “AGL Upstream Gas – Procedure – Field Production Flood Management” issued 2 June 2016;

2. photographs of MP15, MP16 and MP25;

3. a copy of an email and attachments from Mr Clifton to Mr Kelly of the EPA on 9 June 2016;

4. a copy of an email and attachments from Mr Payne to the BOM on 11 July 2016;

5. a certified copy of the information requested from the BOM by Mr Payne on 11 July 2016;

1. a document titled “AGL Upstream Gas – Procedure – Field Production Flood Management” issued 27 June 2016;

2. a copy of a letter dated 27 September 2016 from Mr Clifton to Mr Payne containing the Defendant’s response to the s 193 notice issued by the Prosecutor on 29 August 2016; and

3. a copy of the s 193 notice issued by the Prosecutor on 29 August 2016.

3. Exhibit 3 consisted of tabs 11.1-11.5 of Exhibit 1 which were annexures to Mr Clyne’s affidavit:

1. photographs of MP13 and MP30;

2. photographs of MP15;

3. photographs of MP16 and MP25;

4. a transcript of the interview with Mr Bottin dated 2 March 2017; and

5. a transcript of the interview with Mr Clifton dated 2 March 2017.

Agreed facts

36. The following facts which the Defendant sought to rely on were accepted by the Prosecutor:

1. Each of the three tanks identified in the summons was located some distance from the other two. MP15 and MP16 are located about 1 km apart. EM21 is about 500 m from MP16 and about 1.25 km from MP15.

2. MP15 had 159 L of produced water in it, compared with MP16 with 3,816 L and EM21 with 3,657 L.

3. The MP16 well and tank were identified in the Defendant's Field Production Flood Management plan as falling within “Flood Group 1: Very high risk wells”.

4. The tanks are at elevations that vary between the three tanks identified in the summons. EM21 is located at 70.3 m and MP15 is located at 70.4 m. MP16 is located at about 67 m (the well is at 63.1 and the tank is estimated as elevated about 4 m above the well elevation). The discrepancy in heights itself indicates a difference in what may or may not be said to be competent in responding in the event of a flood.

5. The topography and geography of the area highlights the significance of the different locations of MP15, MP16 and EM21.

6. The river runs between MP15 and MP16, and EM21. Maps show that each tank is accessible by different access roads. In particular EM21 is accessed by roads which are quite different from those which provide access to MP15 and MP16. The access roads have different elevations, gates, and susceptibility to flooding. Accessibility may be relevant to a separate assessment of competence in relation to each tank.

7. Numerous other tanks associated with wells at similar elevations, including at lower elevations than MP15 and EM21, within the vicinity of MP15, MP16 and EM21 are not the subject of allegations of incompetence.

37. The submissions made by the Defendant based on these agreed facts were not accepted by the Prosecutor.

Defendant’s submissions

38. The offence under s 64(1) is unusual in that it creates an offence for an omission, here a failure to act, in accordance with a broad standard namely of competence. This can be contrasted with a “result” offence such as water pollution. The content of the offence against s 64(1) is determined by reference to the licence condition said to be contravened. A contravention of Condition 01.1 occurs if there is a failure to conduct or carry out the licensed activity competently or a defendant was incompetent in its conduct of the licensed activity. The offence is committed when a defendant’s conduct falls below the standard set by, or breaches the requirement of, the relevant licence condition. In most of the cases considering duplicity the offence requires a positive act. If the phrase “MP15, MP16 and EM21” means that the Prosecutor alleges that each tank should or could have been dealt with separately, whether by different measures or the same measure, the summons is bad for latent duplicity.

39. The summons is oppressive and unfair as it alleges the Defendant failed to take uniform measures at a uniform time in relation to all three tanks. Different considerations apply to each tank given their different locations, topography and geography inter alia. The Defendant may wish to assert a different defence in relation to each of these as a result. The Defendant submitted that the evidence, as agreed in [36] above indicated that the three tanks could not fairly and properly be identified as part of the one criminal activity due to the differences between them. Further the Defendant’s evidence establishes that different actions were potentially able to be taken by employees in relation to each of the three tanks because of their different locations and topography which would impact on a finding of whether the Defendant was incompetent.

40. The Defendant submitted this case was similar to Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 (Truegain), Byrne v Baker [1964] VR 443, Chugg v Pacific Dunlop Ltd [1988] VR 411 and Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150. The licensed activities are of significant scope and variation, covering a wide geographical area with multiple gas wells and other infrastructure and plant of varying complexity. The circumstances in this case are different to Hakim v Waterways Authority of NSW (2006) 149 LGERA 415; [2006] NSWCCA 376.

Prosecutor’s submissions

41. The draft amended summons alleges that the Defendant committed an offence against s 64(1) of the POEO Act as it breached a condition of its EPL. The manner of breach of Condition 01.1 is specified in the summons. Both in form and substance a single offence is charged not multiple offences. This is confirmed by the letter from the Prosecutor dated 14 November 2017 to the Defendant. The Defendant’s conduct in respect of each tank was part of one course of conduct or activity being the Defendant’s response to the flood event.

42. Alternatively, the offence arises from a single activity being the response of the Defendant to the flood event.

43. In Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, in relation to when multiple acts can constitute an “activity” that can be charged in one count, Kirby J observed at 107:

Ultimately, what is presented is a question of fact and degree for decision in each case. Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in point of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happened; and (d) the intention of the accused throughout the conduct.

44. Applying these so-called “indicia” to the present case, it is apparent that the Defendant’s conduct in respect of the three tanks clearly satisfies the circumstances required for charging a single count. The Defendant’s acts in respect of the three tanks constituted one “activity”. Revealingly, this is made clear by reference to the Defendant’s own responses to the Prosecutor’s s 193 notice to the Defendant as follows:

1. Timing: the impugned conduct occurred between 3 June and 6 June 2016 over the course of a single weather incident, namely a flood event in the Menangle Park area.

2. Similarity of the acts in respect of the three tanks: the failures of the Defendant in respect of the three tanks were, by the Defendant’s own account, identical.

3. The Defendant made the following remarks in response to questions in the s 193 notice referred to above:

Q 9 Explain why the produced water tank at MP15 was not removed off site prior to the flood water affecting it?” the Defendant responded, “The same factors prohibiting the removal of the produced water tank for MP16 apply to MP15…

Q 10 Explain why the produced water tank at EM21 was not removed off site prior to the flood water affecting it?

A The same factors prohibiting removal of the produced water tanks for MP15 and MP16, as well as the restricted operation of internal access roads, apply to EM21 …

4. Further, the Defendant stated that it took the same approach to each of the three tanks in the lead up to the flood (see email from Mr Clifton to Mr Kelly dated 9 June 2016 in Exhibit 2, where Mr Clifton states in response to a request for an “explanation of the steps taken by AGL leading up to the flood”, relevantly:

All batteries and FloBoss meters were removed from both well sites. AGL continued to monitor the Nepean River flood levels throughout the day and night and shut in 13 wells (MP16 … MP15 … EM21 …) before the wells were flooded.

It is clear that the Defendant’s acts in respect of the three tanks were, by its own account, materially identical.

5. Physical proximity of the place where the events happened: the impugned conduct all occurred within the Defendant’s licensed premises. The tanks in question were, at most, 1.25 km apart.

6. The intention of the accused throughout the conduct: the evidence demonstrates that the Defendant maintained the same intention in respect of all three tanks. For example, Mr Bottin’s evidence and Mr Clifton’s evidence, as summarised above, reveal that the Defendant’s intentions in responding to the flood did not differ with respect to the three tanks.

45. At issue is whether the Defendant’s conduct in respect of the tanks was sufficiently proximate to constitute a single activity, not whether the tanks are physically similar. Such differences are irrelevant to whether or not the Defendant engaged in a continuous activity with respect to the tanks. The summons sits squarely within Walsh v Tattersall. The three tanks are referred to as evidence of the failure of the Defendant giving rise to the offence, they are not each separately an offence.

No duplicity

46. The principle of duplicity is discussed by the High Court in S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Gaudron and McHugh JJ at 280-281 citing Archbold, Pleading, Evidence and Practice in Criminal Cases, (43rd ed, 1988, Sweet & Maxwell) at 46, that “no one count of the indictment should charge the defendant with having committed two or more separate offences”. The rule rests on considerations of fairness to an accused, at 285.

47. The Defendant submits that the physical differences between the tanks and the necessarily different responses to them are sufficiently separate to constitute separate offences. The Prosecutor relies on the particularisation of the activity said to give rise to incompetence as the failure to store the water produced by the Defendant’s scheduled activities by reference to failures in relation to the management of three produced water tanks. It submits that even if the Defendant’s conduct in respect of each produced water tank could constitute a separate offence, the Defendant’s conduct in relation to each tank was part of one course of conduct or activity, being the Defendant’s response to the flood event on 5 June 2016.

48. The Defendant submitted the following cases supported its argument. In Byrne the defendant director was charged under s 107 of the Companies Act 1958 (Vic), for failing to “at all times use reasonable diligence in the discharge of the duties of his office”. A number of separate acts and omissions between 3 May 1960 and 21 June 1962 alleged the defendant director had not acted honestly or used reasonable diligence in the discharge of his duties. The Full Court of the Supreme Court of Victoria held the section required identifiable acts or omissions and could not be satisfied by general characterisation of conduct over a selected period at 453.

49. Chugg was an appeal to the Supreme Court of Victoria against a decision of a magistrate finding that an information was bad for duplicity for offences under s 21(1) of the Occupational Health and Safety Act 1985 (Vic). The section provided that “an employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.” Section 21(2) stated that “without in any way limiting the generality of subs (1), an employer contravenes that sub-section if the employer fails” to do a number of things enumerated in pars (a)-(e) of s 21(2). Fullagar J upheld the decision at first instance, stating that an information based on s 21 which specified a number of separate acts or omissions in which the defendant allegedly failed to provide and maintain a safe working environment was bad for duplicity at 416.

50. Boral Gas was an appeal to the Industrial Court of New South Wales against a decision not to require the respondent prosecutor to make an election in relation to three alleged breaches of the Occupational Health and Safety Act 1983 (NSW). Section 15(1) provided a general duty on employers to “ensure the health, safety and welfare at work” of all employees. Section 15(2) provided a list of particular duties, the contravention of which would result in a breach of s 15(1). Hill J found that “each act or omission which constitutes a failure specified in s 15(2) or otherwise amounts to a breach of the duty under s 15(1)” and therefore should be charged as a separate offence, at 179. The information under s 15 was bad for duplicity and the prosecutor had to make an election.

51. Truegain concerned an alleged breach of an EPL condition requiring the carrying out of waste processing in a competent manner in contravention of s 64(1) of the POEO Act, the same provision the subject of this offence. The summons alleged that Truegain had committed a single offence of acting incompetently in failing to adequately treat and store liquid waste. Leeming JA (Hulme J and Button J agreeing) held that the summons was duplicitous as the treatment and storage of liquid waste were not part of a single criminal enterprise and gave rise to separate offences. Leeming JA’s extensive reasoning on the issue of duplicity at [31]-[74] identifies the basic rule of the common law that no count in an indictment should charge the defendant with having committed two or more separate offences citing Rixon v Thompson (2009) 22 VR 323 at [46]; [2009] VSCA 84. Truegain at [33], citing Rixon at [46], addressed the ability of the Court to deal with arguments concerning duplicity. The general rule identified after consideration of several authorities at [50] was that “unless the allegation constitutes a continuing offence or offences which are closely related amounting to the one activity they should be separately charged.”

52. The two steps identified by Basten JA in Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; [2006] NSWCCA 373 at [9] for the process of identifying duplicity or uncertainty were cited in Truegain at [52]. Firstly it is necessary to consider “the statutory description of the offence in order to identify what is the act or conduct prohibited.” Secondly it is necessary to “identify the act or conduct set out in the pleading as constituting the offence in the particular case.” The elements of the offence under s 64(1) were, firstly, the holding of a licence and, secondly, contravention of a licence condition, at [53]. The condition of the licence required that licensed activities must be carried out in a competent manner. The licensed activities described in the summons included the processing, handling, movement and storage of materials and substances used to carry out the activity and the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity. The Criminal Court of Appeal (CCA) accepted that the description of the licensed activity (there and in this case related to the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity) required that all aspects were required to be carried out in a competent manner. In Truegain the activities of storage and treatment were held to be different although related activities. That the relevant condition referred to them collectively was irrelevant.

53. Other cases of the many which have considered duplicity referred to in the course of argument follow. In Hakim the offence charged was excavating on, in or under protected land. The appellant was charged with one offence involving three different instances of excavation some months apart on a site which was protected land. Spigelman CJ (Grove and Bell JJ agreeing) held it would have been open to the prosecutor to lay separate charges. There was no unfairness in proceeding on a single overall arraignment which encompassed matters that arose in the course of (one) construction event at [82] and [85].

54. R v Moussad (1999) 152 FLR 373; [1999] NSWCCA 337, concerned a charge of defrauding the Commonwealth government in relation to falsely claiming child care rebates. A single charge which referred to several instances of incorrect claims was found not to be duplicitous given the general nature of the charge. This was described as concerning an enterprise. The circumstances in S v The Queen were distinguished by the CCA (Smart AJ, Wood CJ at CL and Bell J agreeing). The approach in Moussad was approved in Hakim.

55. As observed in many cases referred to above, particularly Walsh v Tattersall, the issue requiring determination is one of fact and degree which depends on the nature of the charge and the particular circumstances before a court. Although not explicitly stated in the draft summons set out in [5] above the manner of breach alleged relates to a failure to competently store waste being the produced water in a short time period resulting from a single flood event. The three tanks identified serve that purpose of waste storage. Is the operation of the three tanks by the Defendant so closely related as to amount to one activity?

56. The parties addressed this question at different levels of generality based on reasonably extensive evidence summarised above at [8]-[36]. The Defendant relied on evidence which identified the different topographical and access arrangements between the tanks. Much of the evidence adduced for that purpose in the second affidavit of Ms Hughes summarised above in [25]-[33] was the subject of agreement as set out in [36] above and I do not need to refer to that in more detail as part of my reasoning. The Defendant also submitted that its employees dealt with each tank differently as identified in the interviews with Mr Bottin and Mr Clifton because of the different elevations and proximity to different access roads inter alia as giving rise to separate activities creating separate offences. It relied on evidence from its employees that the time required to remove each tank varied from half an hour to two and a half hours depending on its location according to the record of interview with Mr Bottin, summarised above in [20] and [29]. It also relied on differing amounts of water escaping from each tank.

57. In contrast the Prosecutor submitted that the Defendant’s general conduct should be the focus of any inquiry into what constitutes the relevant activity and not the physical differences between the tanks. As summarised in the Prosecutor’s submissions in relation to the “indicia” in Walsh v Tattersall summarised above at [44] the three tanks were part of a waste storage system on one large site. The events alleged occurred in a very short period of time and the offence is not charged as a continuing one. As identified in the evidence the Prosecutor relied on, particularly the answers to the s 193 notice, the same response applied to all three tanks in terms of checking for weather updates, flooding information and road closures and conducting site inspections.

58. I do not need to choose which parties’ version of events applies as a question of fact. Both versions may well apply as they essentially address different matters.

59. In relation to construction of the charge, Truegain is most relevant as a decision of the CCA considering duplicity in relation to the same section of the POEO Act. Applying the approach in Hannes adopted in Truegain the statutory offence is under s 64(1), the elements of which are holding a licence, a condition of which is breached. That the licence condition prohibits incompetent behaviour by requiring licensed activities to be carried out in a competent manner which the Defendant emphasised gave rise to an unusual charge can be accepted. The elements of the offence are as stated in Truegain.

46. The Defendant sought to rely on Byrne where the charge was failing at all times to use reasonable diligence in office, Chugg where the charge arose from an ongoing requirement to provide and maintain a safe working environment and Boral Gas where the charge alleged a breach of a general duty to ensure employee safety as these had some similarity to the condition of the licence allegedly breached here. As identified in Truegain the elements of the offence concern whether a licence is held and if held whether a condition has been breached which are arguably of a different character to the cases immediately above.

47. In considering the charge in the circumstances before me, I agree with the Prosecutor that the outcome in Truegain is distinguishable from this case as the pleading discussed in detail above in [52] was different, with storage and treatment being found to be separate licensed activities giving rise to separate offences. The offence here relates to a failure to store water competently, a single activity of storage under the licence conditions in [1] above. All three tanks are used for that purpose. The Prosecutor’s analysis of the events giving rise to the charge is most relevant to the consideration of duplicity. The three tanks are most appropriately viewed as part of one activity of water storage. The events occurred in a short time period, resulting from the same flood event. I agree with the Prosecutor that the topographical and road access differences which may have resulted in potentially different approaches by employees of the Defendant are not material to the issue I must determine. That different amounts of water escaped from the three tanks is also immaterial. As the Prosecutor highlighted there was also commonality in approach to matters such as the inquiries made about weather and flooding.

48. To the limited extent other cases can provide any guidance given that each case must be determined in light of its own circumstances, in Boral Gas (as cited in Truegain at [66]) “many of the acts and omissions identified as failures were ‘disparate in nature and content’, and involved ‘different items of plant, different systems of work, different operations and procedures, different locations on the premises,’” per Hill J at 179. The same could not be said of the circumstances in this case. Similarly in Byrne a relevant consideration was the length of time of some two years over which the events took place. While there were potentially different responses according to the Defendant in relation to each tank these circumstances do not amount to being “disparate in nature and content”. I also agree with the Prosecutor that this matter has some commonality with the circumstances in Moussad and Hakim.

49. The Defendant alleges unfairness to it if an election by the Prosecutor is not required relying in part on the unusual nature of the offence charged. I consider the Defendant is informed of the particular matters said to give rise to incompetence and to the extent there was still uncertainty about these as aired during the hearing before me the revised particulars to be supplied will overcome that disadvantage to the Defendant. As the Prosecutor submitted, to charge for three offences is likely to overstate the severity of the offence. For the reasons stated above I do not consider the summons to be duplicitous.

50. The Defendant’s notice of motion dated 13 November 2017 should be dismissed.

Order

65. The Court orders:

1. The Defendant’s notice of motion dated 13 November 2017 is dismissed.

2. The exhibits may be returned.

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Decision last updated: 20 March 2018