Environment Protection Authority v Aussie Earthmovers Pty Ltd - [2018] NSWLEC 91

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 10.14
Category: Procedural and other rulings
Parties: Environment Protection Authority (Prosecutor)
Aussie Earthmovers Pty Ltd (Defendant)
Representation:
Counsel:
R Verzosa, solicitor (Prosecutor)
No appearance (Defendant)
Solicitors:
Environment Protection Authority (Prosecutor)

File Number(s): 2018/00104771; 2018/00104773

EX TEMPORE Judgment

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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWLEC 91
Decision Date: 15 June 2018

CaseChat Overview and Summary

The matter before the Court involved a dispute between the Environment Protection Authority (EPA) and Aussie Earthmovers Pty Ltd (Aussie Earthmovers). The EPA alleged that Aussie Earthmovers had breached environmental regulations by conducting earthmoving activities without the required permits, thereby causing harm to the local ecosystem. The case was heard in the Federal Court of Australia.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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 10.14
Category:	Procedural and other rulings
Parties:	Environment Protection Authority (Prosecutor) Aussie Earthmovers Pty Ltd (Defendant)
Representation:	Counsel: R Verzosa, solicitor (Prosecutor) No appearance (Defendant) Solicitors: Environment Protection Authority (Prosecutor)
File Number(s):	2018/00104771; 2018/00104773