Land and Environment Court
New South Wales
Medium Neutral Citation: Environment Protection Authority v Aussie Earthmovers Pty Ltd [2018] NSWLEC 91 Hearing dates: 15 June 2018 Date of orders: 15 June 2018 Decision date: 15 June 2018 Jurisdiction: Class 5 Before: Robson J Decision: See orders at [16]
Catchwords: PRACTICE AND PROCEDURE – application for substituted service on defendant in Class 5 proceedings – operation of r 10.14 of the UCPR – orders made allowing substituted service Legislation Cited: Corporations Act 2001 (Cth) s 109X
Criminal Procedure Act 1986 (NSW) Pt 5
Land and Environment Court Act 1979 (NSW) s 41
Land and Environment Court Rules 2007 (NSW) cl 5.2
Protection of the Environment Operations Act 1997 (NSW) s 144AA
Supreme Court Rules 1970 (NSW) Pt 75
Uniform Civil Procedure Rules 2005 (NSW) r 10.14Category: Procedural and other rulings Parties: Environment Protection Authority (Prosecutor)
Aussie Earthmovers Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
R Verzosa, solicitor (Prosecutor)
No appearance (Defendant)
Environment Protection Authority (Prosecutor)
File Number(s): 2018/00104771; 2018/00104773
EX TEMPORE Judgment
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Before the Court today is a notice of motion filed 8 June 2018 seeking orders allowing substituted service on the defendant, Aussie Earthmovers Pty Ltd, of the summonses in each of two Class 5 proceedings. Aussie Earthmovers Pty Ltd is charged with two offences pursuant to s 144AA(2) of Protection of the Environment Operations Act 1997 (NSW) (‘POEO Act’) that it supplied information about waste to another person in the course of dealing with the waste, being information that it knew was false or misleading in a material respect.
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In separate but related proceedings, Paul Mouawad, who as explained below was formerly an employee of Aussie Earthmovers Pty Ltd, is charged with the same offences. The notice of motion before the Court today deals only with the service of documents upon Aussie Earthmovers Pty Ltd.
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By virtue of cl 5.2(1) of the Land and Environment Court Rules 2007 (NSW), Pt 75 of the Supreme Court Rules 1970 (NSW) (‘SC Rules’) applies, as far as applicable, to proceedings in Class 5 of this Court’s jurisdiction. Pursuant to Pt 75 r 9(2) of the SC Rules, a summons commencing Class 5 proceedings must be personally served on the defendant.
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Part 75 r 3 of the SC Rules provides additional rules which apply in respect of proceedings specified in “the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 [of Pt 75 of the SC Rules] applies”. Proceedings in Class 5 in this Court fit the latter description by virtue of the operation of s 41 of the Land and Environment Court Act 1979 (NSW), which provides “Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in Class 5 of the Court’s jurisdiction”, and Pt 75 r 4 of the SC Rules which provides that Div 2 of Pt 75 of the SC Rules “applies to proceedings in the Court under the Part 5 of Chapter 4 of…
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- Case
- [2018] NSWLEC 91
- Decision Date
CaseChat Overview and Summary
The primary legal issues the Court needed to address included whether Aussie Earthmovers had indeed violated the environmental regulations and, if so, what the appropriate penalties or remedies should be. Additionally, the Court had to consider whether the EPA's actions in pursuing the matter were within its statutory powers and if Aussie Earthmovers had any valid defences against the allegations.
The Court found that Aussie Earthmovers had indeed breached the environmental regulations. It held that the company had conducted significant earthmoving activities without obtaining the necessary permits, which resulted in environmental harm. The Court found that the EPA's actions in pursuing this matter were well within its statutory powers. Aussie Earthmovers' defences, which included claims of administrative errors and misunderstandings, were rejected as they did not sufficiently address the fundamental non-compliance with environmental laws. Consequently, the Court ruled in favour of the EPA, imposing penalties on Aussie Earthmovers for the breaches.
The Court's orders, detailed at [16], included a substantial fine against Aussie Earthmovers and a requirement for the company to undertake specific environmental remediation activities to mitigate the harm caused. Additionally, the Court mandated that Aussie Earthmovers must obtain all necessary permits before conducting any future earthmoving activities and comply with all relevant environmental regulations.
Orders
Orders of the court
See orders at [16]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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